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Synopsis

The Central government on Thursday opposed before the Supreme Court a plea for criminal martial rape, saying a comprehensive, and holistic rather than a strictly legal approach was required in the matter.

In an affidavit, the government highlighted that striking down exception to husband from the offence of rape on the ground of its constitutional validity will have a far-reaching effect on the institution of marriage and may severely impact conjugal relationship.

The relationship of marriage creates an intelligible differentia which has a rational nexus with the object sought to be achieved, it said.

"The concept of marriage, across personal law and jurisdictions, once solemnised as per the prevailing societal rituals or legal requirements, creates reciprocal legal and social obligations on part of both individuals. It is submitted that at the same time, marriage creates social and legal rights on the part of both individuals and others in the family, in various domains of civil laws and even criminal law," it added.

In response to a plea filed by one Hrishikesh Sahoo and others, the Ministry of Home Affairs said 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 exception should be retained, it is submitted that it would not be appropriate for this court to strike it down.

Considering the social impact involved, the intimate familial relations being the subject matter and ground realities prevailing in different parts of society of this large, populous and diverse country, taking a decision merely based upon the arguments of the PIL petitioners, may not serve the ends of justice, the government contended.

The Centre said the institution of marriage clearly has social aspects and implications and their regulation, as per the standards recognised by the Legislatures or by laws having societal ramifications, cannot be faulted lightly. 

"Sexual aspect is but one of the many facets of the relationship between husband and wife, on which the bedrock of their marriage rests. Care, consideration, and an understanding of one other’s likes and dislikes, hopes and aspirations, are fundamental to the sustenance of a marriage that is to abide," it said.

The government said if sexual intercourse or sexual acts by a man with his own wife is made punishable as “rape”, it may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage. In the fast growing and ever changing social and family structure, misuse of the amended provisions can also not be ruled out, it said.

Stoutly defending the exception carved out for husband from penal provision of rape, the government said, "A husband certainly does not have any fundamental right to violate the consent of the wife, however, attracting the crime in the nature “rape” as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate". 

The central government also said the provisions are based on the rationale of “intelligent differentia of marriage” and hence, those should be sustained. 

It also maintained the case of a married woman and her own husband cannot be treated in a exact same manner as that in other cases as there are other penal consequences that are arising from the said situation.

In an institution of marriage, the government said, there exists a continuing expectation, by either of the spouse, to have reasonable sexual access from the other.

"Though these expectations do not entitle the husband to coerce or force his wife into sex, against her or his will. At the same time, these obligations, expectations and considerations, which are completely absent in the case of a stranger who seeks sexual congress, or even from any other intimate relationship, constitutes as a sufficient basis for the Legislature to distinguish qualitatively between an incident of non consensual sex within the marital sphere and without it," the government said.

The act colloquially referred to as 'marital rape' ought to be illegal and criminalised but a woman's consent is not obliterated by marriage, and its violation should result in penal consequences, the petitioners had said.

"However, the consequences of such violations within marriage differ from those outside it. Parliament has provided different remedies, including criminal law provisions, to protect consent within marriage. Sections 354, 354A, 354B, 498A IPC, and the Protection of Women from Domestic Violence Act, 2005, ensure serious penal consequences for such violations," it said.

The right of a woman and the consent of a woman within 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, the government said.

These consequences represent the delicate balance that the Parliament has sought to draw and, therefore, merely concentrating on the provisions while ignoring other aspects of the matter would do grave injustice, it added.

It said the validity of provisions pivots around the presence of an intelligible differentia. It is a settled doctrine that a law which is premised on an intelligible differentia which is a rational nexus with the object sought to be achieved would not fall foul of Article 14 of the Constitution, it said.

In the instant case, the government said, the consent of the woman is not evaporated rather breach of consent results in different penal consequences. 

"It cannot be a fundamental right under Article 21 of the Constitution that breach of consent in all eventualities would necessarily entail the consequences of Section 375/376 of the IPC. If the breach of consent results in altered penal consequences thereby creating a sufficient deterrence, the said provision and the exception to Section 375 cannot be faulted," it said.

The government also said the right to life under Article 21, subsumes the right to a healthy conjugal relationship between spouses within the institution of marriage, the present question of criminalisation of the lack of consent in case of an act within the institution of marriage, requires the legislature and the court to construct a delicate balance thereby protecting the constitutional right of all parties involved. 

It said Section 375, IPC is a well-thought-of provision, which tries to cover every act of sexual abuse by a man on a woman within its four walls.

"Therefore, it is respectfully submitted that if the legislature decides to exempt, from the rigour of such a charge, and such a label, husbands, vis-à-vis their wives, given the intelligible differentia that exists in a marital relationship vis-à-vis other relationships, the said decision and discretion should be respected and not interfered with especially when a separate suitably tailored penal remedy is provided by the Legislature," the government said.

Case Title: Hrishikesh Sahoo Vs Union of India