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

The Indian government has opposed calls to classify non-consensual sexual acts committed by a husband against his wife as “rape”, saying that to do so could have an impact on 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, labelling such an act “rape” would be “excessively harsh and therefore disproportionate”.

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

The submission was made in response to a batch of petitions put before the Supreme Court, which seek the removal of an exception in the country’s penal code that states that a sexual act by a man with his own wife, as long as the wife is not under 18 years of age, is not rape.

In a 40-page affidavit, the federal government stated that “a husband certainly does not have any fundamental right to violate the consent of the wife”, but emphasised that classifying such a violation as rape could be seen as overly severe. The document cited the need to take a balanced approach to take into account fundamental rights within the context of marriage.

“The central government asserts that [the requirement for] 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.”

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

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

A comprehensive document issued by the Ministry of Home Affairs recognised that marital rape should be deemed illegal and subject to criminal consequences.

However, it conceded that each party in a marriage has the right to privacy and dignity, adding that invoking a charge of rape “would necessarily entail consequences” that do not reflect the nuanced reality of the matrimonial relationship, reported the Hindustan Times.

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

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

It added that the government had chosen to retain the marital rape exception despite recommendations by a different government committee, “appreciating the subtlety and complexity of consent within marriage”.

The affidavit cited socio-economic and cultural factors as being among the reasons for the decision, saying that the courts must account for diversity. It also raised concerns about the potential misuse of marital rape laws.

Seeking judicial restraint, it said that the issue for consideration in the current batch of petitions is a “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”.