Marital rape social issue, no need to criminalise: Center to SC

The Centre opposed the criminalization of marital rape before the Supreme Court on Thursday, October 3. In its affidavit responding to petitions demanding such criminalization, the Centre argued that marital rape is more of a social issue than a legal one and that it lies outside the Supreme Court’s jurisdiction.

It emphasized the need for alternative “suitably designed punitive measures” instead of criminalization of marital rape.

The Centre emphasized that breaches of consent should be punished differently depending on whether they occur within or outside of marriage. They argued that this perspective aligns with Article 14 (right to equality) of the Constitution, as it refuses to treat two incomparable situations (in this case, sexual relations within a marriage and those outside a marriage) as equal.

It also mentioned that marriage comes with expectations of mutual sexual relations, this does not grant a husband the right to coerce his wife into sex against her will. It stated that punishing such acts under anti-rape laws may be “excessive and disproportionate.”

The affidavit further added that the sexual aspect is but one of many facets of the relationship between husband and wife, on which the bedrock of their marriage rests. The centre requested the Supreme Court to “strike down the exception” for “preservation of the marital institution.”

It was also noted that Parliament has already established remedies to protect a married woman’s consent, including laws against cruelty to married women (Section 498A of the Indian Penal Code) and the Protection of Women from Domestic Violence Act, 2005.

The Centre criticised the petitioners’ approach of treating marriage as a private institution, terming this view “unidimensional.”

What is Marital rape?

Marital rape is the act of forcing one’s spouse to have sex against their will. It is a form of sexual assault that occurs within a marriage.

Historically, sexual intercourse within marriage was often seen as a right of spouses, regardless of consent. However, in recent decades, there has been a growing global recognition that engaging in sexual activity without a spouse’s consent is a form of marital rape and should be criminalized.

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