Opposing the criminalization of marital rape, which is sought by many petitioners before the apex court, the Centre has filed its preliminary counter affidavit in the top court.
The supreme court is inundated with petitions posing the complex legal question of whether a husband who coerces his non-minor wife into having sex should be shielded from prosecution for the crime of rape.
Sexual acts or sexual relations between a man and his wife, provided the wife is not a minor, are not considered rape under the exception clause of Section 375 of the Indian Penal Code (IPC), which has been repealed and replaced by the Bharatiya Nyaya Sanhita (BNS). "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape," even under the new law's Exception 2 to Section 63 (rape).
Additionally, it is argued that if a man's sexual acts with his own wife are criminalized as "rape," it will have a profound impact on the institution of marriage, as stated in the Center's affidavit. This is in support of the constitutional validity of the exception 2 of Section 375 of the IPC.
According to the Center, abuse of the amended provisions cannot be completely ruled out given how quickly society and families are evolving and how difficult it would be for an individual to demonstrate whether or not consent was given.
It stated that after taking into account each state's perspective, a comprehensive approach and consultation with all states are required to determine whether the provision is constitutional.
The Center stated, "this is especially so since the topics at hand, directly affect society as a whole and are included in the concurrent list of the seventh schedule to the Indian Constitution".