Indian government argues against labelling non-consensual sexual acts by husband as marital rape

Classifying marital rape as 'rape' is excessively ‘harsh and disproportionate’, Indian government says

The Indian government opposed calls to label non-consensual sexual acts by a husband on his wife as “rape”, saying it may impact conjugal relationships and disturb the institution of marriage.

In its submission to the Supreme Court, the Ministry of Home Affairs said that while a husband does not have the right to violate his wife’s consent, labeling such an act as "rape" is "excessively harsh and therefore disproportionate”.

This marks the first time the federal Narendra Modi government has officially opposed calls to abolish the marital rape exception within Indian law.

The submissions were made in response to a batch of petitions before the Supreme Court seeking removal of exception in the country’s penal code that states “sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.

In a 40-page affidavit, the federal government stated, “a husband certainly does not have any fundamental right to violate the consent of the wife”, but emphasised that classifying this violation as rape could be seen as overly severe as it sought a need for a balanced approach to reconcile fundamental rights within the context of marriage.

“The central government asserts that a woman’s consent is not obliterated by marriage, and its violation should result in penal consequences,” submitted the ministry. “However, the consequences of such violations within marriage differ from those outside it.”

This statement comes after the government had previously indicated in 2022, during a hearing at the Delhi High Court, that the matter required further consultation and that a review of criminal laws was underway.

At the time, solicitor general Tushar Mehta had submitted that the government did not wish to take a definitive stand, preferring to engage in consultations before proceeding. It invoked a sharp response from the High Court that delivered a split verdict, with the court remarking that arguments would have been “richer” had Mr Mehta assisted the court.

In a comprehensive document from the Ministry of Home Affairs, the centre recognised that marital rape should be deemed illegal and subject to criminal consequences.

However, it conceded that both parties in a marriage have right to privacy and dignity, adding that invoking rape charges “would necessarily entail consequences” which do not reflect the nuanced reality of matrimonial relationship, reported the Hindustan Times.

The government also argued that labeling marital rape as rape could disrupt the conjugal relationship and the institution of marriage.

The affidavit said there exists an expectation of reasonable sexual access between spouses but this does not justify coercion. However, it added “these obligations, expectations and considerations…are completely absent in the case of a stranger”, thus providing legislature to “distinguish qualitatively between an incident of non-consensual sex within the marital sphere and without it”.

It added that the government chose to retain the marital rape exception despite recommendation by different government committee “appreciating the subtlety and complexity of consent within marriage”.

The affidavit cited socio-economic and cultural factors as reason for parliament’s stance, saying that the courts must account for this diversity. It also raised the concern of potential misuse of marital rape laws.

Seeking judicial restraint, it said, the issue for consideration in the current batch of petition is “social issue rather than a legal issue, therefore, it is submitted that the same cannot be decided without proper consultation with all the stakeholders or taking the views of all the states into consideration”.