Marital Rape: Centre informs SC that striking down exception will have effect in marriage, needs comprehensive approach

New Delhi: The Centre on Thursday filed affidavit in the matter almost about marital rape and said that striking down Exception 2 of Section 375 of IPC on the bottom of its constitutional validity will have a a lot-reaching effect on the institution of marriage and desires a comprehensive approach in preference to a strictly legal approach.

The Centre wired that it mustn't be interfered unless a separate suitably tailored penal remedy is provided by the legislature. The centre affidavit used to be filed in accordance with the petitions challenging the constitutional validity of the Exception 2 to Section 375 of Indian Penal Code, which decriminalises rape by a husband on his wife.

Notably, Exception 2 to Section 375 of the Indian Penal Code, which defines rape, states that sexual intercourse by a person with his wife is no longer rape, unless the wife is below 15 years of age. Centre informed the Supreme Court that criminalisation of marital rape may severely impact the conjugal relationship and could cause serious disturbances in the institution of marriage. “Within the short-growing and ever-changing social and family structure, misuse of the amended provisions may no longer be ruled out, because it is able to possibly be not easy and challenging for a person to prove whether consent used to be there or no longer,” Centre said in the affidavit.

In its affidavit, the Centre informed the SC that matter almost about marital rape will have very a ways-reaching socio-legal implications in the usa and therefore, want a comprehensive approach in preference to a strictly legal approach. The Centre explained that Section 375 covers within its ambit all acts, from single act of unwilling sex to gross perversion and said that Section 375 is a well-considered provision, that tries to cover every act of sexual abuse by a person on a lady within its four walls.

“Therefore, that is miles respectfully submitted that if the legislature decides to exempt, from the rigour of this sort of charge, and this sort of label, husbands, vis-a-vis their better halves, given the intelligible differentia that exists in a conjugal relationship vis-a-vis other relationships, the said decision and discretion should be respected and no longer interfered with specifically when a separate suitably tailored penal remedy is provided by the Legislature,” the Centre submitted.

The Centre added, “while exercising such judicial review on such subjects (marital rape), that is miles to be appreciated that the current question is no longer handiest a constitutional question, but truly a social question on which the Parliament, after being apprised and being privy to either side of the opinion on the current issue, has taken a position.”

It informed the head court that the Parliament, after being apprised and being privy to either side of the opinion on the current issue has decided to retain Exception 2 to Section 375 of IPC in 2013 while amending the said section in the year 2013. The Centre besides submitted that the Legislature in its wisdom after concerned with the socio-economic impact of this sort of recommendation, deliberately withheld from deleting the impugned provision from the statute books.

“On this regard, that is miles besides submitted that the said discretion exercised by Parliament of the usa should be respected and ought no longer be interfered by the Courts exercising the flexibleness of judicial review,” Centre said to SC. “In essence, the better of a lady and the consent of a lady in the institution of marriage is legislatively protected, respected and given its due regard, providing for reasonably stringent consequences in case of violation of the same. These consequences represent the fragile balance that the Parliament has sought to draw and, therefore, merely concentrating on the impugned provisions while ignoring other aspects of the matter would do grave injustice,” it added.

Centre besides submitted that in matters falling squarely in the domain of the regulation of conjugal relationship between spouses, thereby being a societal issue, due deference be exercised while checking out the validity of legislative choice made by the Parliament. “In such situations, the Parliament makes a decision on factors to have the choice to be beyond the judicial realm, the concept of such choice being the Parliament being body in an instant elected by the people and thereby presumed to remember of of the wishes and the understanding of the people on such delicate and sensitive issues,” it said.

The Centre cited the Law Commission 172nd Report on Review of Rape Laws in the case of Exception 2 of Section 375 of IPC whereby it has observed no longer to delete the exception due to the excessive interference with the conjugal relationship.

Further, Centre said that there is also a provision lower than the law for cruelty against women folk and in case marital rape is brought lower than law, it is going to have potential to destroy the institution of marriage and the total family system may possibly be lower than great stress. “Broken families would besides cause insecurity among women folk of these families,” Centre submitted, adding that the parliament in its wisdom has retained Exception 2 of Section 375 of IPC, that is miles clear that different commissions have taken divergent views on this subject over different deadlines.

“The prayers as made for by the petitioner are vehemently denied in totality and in view of the submissions made by the answering respondent,” Centre said in the affidavit. The affidavit that deals with a form of aspects almost about the issue also said that in an establishment of marriage, there exists a seamless expectation, by either of the better half, to have reasonable sexual access from the alternative. The Centre besides submitted that due to the the implicit nature of conjugal relationship in the institution of marriage, the question of framing a law that tackles the breach of consent in the institution of marriage becomes a query of delicate legislative balance concerned with the competing positions.

Loads of petitions were filed in the Supreme Court challenging the constitutional validity of the exception to marital rape issue. One petition is against Karnataka HC judgement, which declined to quash the charge of rape against a person accused of raping and keeping his wife as a sex slave.

Earlier, the All India Democratic Females’s Association (AIDWA) among others moved the Supreme Court against Delhi High Court’s split verdict on issue almost about criminalising marital rape matter. Two- judges Bench of Delhi High Court on May 12, 2022, pronounced a split verdict on issue almost about criminalising marital rape.

Delhi HC’s Judge Justice Rajiv Shakdher rules in favour of criminalising while Justice Hari Shankar disagreed with the opinion and held that Exception 2 to Section 375 would no longer violate the Constitution because that is miles in keeping with intelligible differences. AIDWA, in its plea, had said that the exception allowed to marital rape is destructive and in opposition to the item of rape laws, which clearly ban sexual intercourse sans consent.

It places the privacy of a marriage at a pedestal above the rights of the lady in the wedding, the plea said. The petition said that Marital Rape Exception is in violation of Articles 14, 19(1)(a) and 21 of the Constitution.