The Government on Thursday filed an affidavit before the Supreme Court opposing petitions that have called for the criminalisation of marital rape in India.

The affidavit filed by the Union Home Ministry said that in a marriage, there is a continuing expectation to have reasonable sexual access from one’s spouse. It clarified that such expectations do not entitle a husband to coerce his wife to have sex against her will.

However, it may be excessive and disproportionate to punish a man under anti-rape laws for such an act, the Centre said. The affidavit further highlighted that the parliament has already provided different remedies to protect a married woman’s consent within marriage.

In the counter-affidavit filed through advocate AK Sharma, the Union Home Ministry backed the existing Indian rape law that carves out an exception for sexual relations between a husband and wife.

The Central Government asserted that the issue is more of a social than a legal one, which has a direct bearing on society in general. While so, even if ‘marital rape’ is to be criminalised, it is not up to the Supreme Court to do so, the Centre argued.

“The (issue) cannot be decided without proper consultation with all the stakeholders or taking the views of all the States into consideration ... the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalised. The Central Government asserts that a woman’s consent is not obliterated by marriage, and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it,” the affidavit stated.

It added that a breach of consent should be punished differently, depending on whether such an act occurs within or outside a marriage. These remedies include laws punishing cruelty to married women (as it was under Section 498A under the Indian Penal Code then), laws punishing acts against the modesty of women, and remedies under the Protection of Women from Domestic Violence Act, 2005.

The Bench of Chief Justice of India DY Chandrachud with Justices JB Pardiwala and Manoj Misra is currently seized of the matter. Marital rape is excluded from the ambit of “rape” by way of Exception 2 to Section 375 of the Indian Penal Code (IPC).

A similar provision is also present in the newly enacted Bharatiya Nyaya Sanhita (BNS) which replaced the IPC on July 1 this year. In 2022, the Delhi High Court delivered a split verdict on whether marital rape should be a criminal offence. The matter then reached the Supreme Court in September that year.

“The sexual aspect is but one of many facets of the relationship between husband and wife, on which the bedrock of their marriage rests ... Given the nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned Exception should be retained, it is submitted that it would not be appropriate for this Hon’ble Court to strike down the Exception,” the latest affidavit added.

The counter-affidavit was filed in response to a batch of petitions that have called for the criminalisation of marital rape. The Centre criticised the petitioners’ approach of treating the institution of marriage as a private institution, terming this view unidimensional. The case of a married woman and her own husband cannot be treated in the exact same manner as other cases, it said.