Closing statement

"Marriage is a partnership, not a license for control or abuse. By criminalizing marital rape, we honor
the principles of equality, justice, and human dignity that our society strives for.

After the Nirbhaya rape case in 2012, the Justice Verma Committee had suggested criminalizing
marital rape and said that marriage didn't mean an irrevocable consent to sexual activities. But the
Government of India neglected the suggestion.7

The second exception to section 375 ultra vires the right to equality incorporated in 'Article 14' of
the Indian Constitution as it discriminates against those women who are married by disconfirming
them tantamount security from rape and sexual abuses. This exception produces two classes of
women based on their marital status and exempts actions committed by men against their wives.
Correspondingly, due to the marital status of women, Exception 2 makes the exploitation of married
women viable but in the case of unmarried women similar acts i.e., rape and sexual harassment
have been criminalized.

However, Exception 2 thwarts the objective of Section 375 that is, to secure women and penalize
those involved in the barbaric activity of commission of rape. Immunizing husbands from the penalty
is wholly contrary to that object. In simple words, the repercussions of rape are the same whether or
not a woman is married or single. Furthermore, it could be more difficult for a married woman since
they're knotted with their husbands to flee the abusive situation they're facing at home. In
actuality, Exception 2 persuades husbands to engage into sexual activities with their wives vigorously
because husbands are aware of the fact that their acts are not penalized or fined by law.

the Union Government stated that criminalising rape would thwart the marriage
institution and become an easier way for harassing spouses.

Types of marital rape

The following three kinds of marital rape are identified by legal scholars as generally prevalent in the
society:3

Battering rape: In “battering rapes”, women experience both physical and sexual violence in the
relationship and they experience this violence in various ways. Some are battered during the sexual
violence, or the rape may follow a physically violent episode where the husband wants to make
up and coerces his wife to have sex against her will. The majority of marital rape victims fall under
this category.

Force-only rape: In what is called “force-only” rape, husbands use only the amount of force
necessary to coerce their wives; battering may not be characteristic of these relationships. The
assaults are typically after the woman has refused sexual intercourse.

Obsessive rape: Other women experience what has been labelled “sadistic” or “obsessive” rape;
these assaults involve torture and/or “perverse” sexual acts and are often physically violent.

Marriage as a Sacrosanct Bond

 Belief: In India, marriage is not just a personal relationship but also a sacred institution. It is
often seen as a lifelong bond between two individuals, regulated by religious, cultural, and
social norms. Many argue that criminalizing marital rape might conflict with these traditional
notions by framing marital relations in adversarial terms.
India's Interior Ministry, in a written response sent Thursday to
petitions filed with the top court, argues that while a man should face
"penal consequences" for raping his wife, criminalizing the act "may
seriously impact the conjugal relationship and may lead to serious
disturbances in the institution of marriage."

"A husband certainly does not have any fundamental right to violate
the consent of his wife," the government says in its affidavit.
"However, attracting the crime in the nature of 'rape' as recognized in
India to the institution of marriage can be arguably considered to be
excessively harsh."
The Indian government has argued that there are already sufficient legal protections for married
women against sexual and domestic violence. The government's affidavit this week says marital rape
was addressed in a 2005 law protecting women from domestic violence.

That law recognizes sexual abuse as a form of domestic violence but does not explicitly lay out
penalties for it. Another section of the penal code imposes a prison term of up to three years for
men found guilty of acts broadly defined as "cruelty" against their spouse.

In 2022, before the Delhi High Court, the union government had said that the ‘issue needs wider
consultations’

The Centre, in its affidavit, also acknowledged that non-consensual acts within marriage, including
forced sex, already attract penal consequences under the Domestic Violence Act (DVA) and other
provisions of the penal code. However, it argued that labelling such acts as ‘rape’ could destabilise
the ‘delicate balance’ of conjugal relationships and lead to significant disturbances within the
institution of marriage.

the Centre revealed that a majority of states that responded to its inquiry favoured retaining the
marital rape exception. Out of 15 states, only Karnataka, Tripura, and Delhi opposed the provision,
while Assam, Chhattisgarh, Goa, Uttar Pradesh, Gujarat, Madhya Pradesh, Manipur, Uttarakhand,
and Ladakh supported it. The National Commission for Women was also in favour of keeping the
marital rape exception intact.

The consequences of punitive measures against husband may lead to destitution and vagrancy for
wife and dependent children due to lack of a robust support system for a victim. The forceful act of
sex by a husband violates the personal bodily autonomy of a woman and same should not remain
without a remedy. However, bringing the act under the purview of section 375 may perpetrate more
harm than good for married women. Alternate legal remedy already exist under section 498A IPC,
Protection of Women from Domestic Violence Act, 2005 and recourse to matrimonial laws such as
divorce on the ground of cruelty.”

The Central Government asserts that a woman's consent is not obliterated by marriage, and its
violation should result in penal consequences. 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

marriage is to be properly understood and appreciated before understanding the challenge to the
presently Impugned provisions. marriage is an institution that converges a delicate balance of rights,
obligations, duties and conditions between a man and a woman, in order to regulate the relationship
as husband and wife and the family that they create.

It is submitted that in effect, in addition to being a private and personal relationship between
spouses, the institution of marriage also entails the following: (a) It is a socially sanctioned voluntary
union between a man and a woman; (b) Institution of marriage plays a pivotal and fundamental role
for the institution of family; (c) Stable marriages and families promote fraternity and vitalise the
social and cultural fabric of the society and the nation; (d) It is believed and accepted as a permanent
bond and not merely transient or temporary one; (e) Cohabitation and consortium is a necessary
concomitant of marriage; and (f) Marriage creates reciprocal rights and obligations, often partaking a
legal character or sanction, not just for the couple but their families and particularly the children
born in the wedlock.

It is submitted that the 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. 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
impugned Exception should be retained, it is submitted that it would not be appropriate for this
Hon’ble Court to strike down the Exception.

It is submitted that a perusal of abovesaid provisions would show that Sections 354, 354A and 354B
and 498A of IPC and the Protection of Women from Domestic Violence Act, 2005 provide for a
sufficiently adequate remedy which includes penal consequences thereby protecting the right and
dignity of a woman even within the institution of marriage. In essence, 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.
These consequences represent the delicate 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 is submitted that the non-application of the drastic penal and procedural rigours of Section 375 IPC
and Section 376 IPC within the relationship of marriage is a reasonable classification as the law
provides other penal consequences for the violation of consent of a woman even within the
relationship of marriage, It is not the case that the said acts remain 35 unpunished or untouched by
the force of law. The assertion that the concept of consent within a marriage is done away by the
Legislature through Exception 2 to Section 375 IPC is based on an erroneous reading of the law

. It is further submitted that the impugned Exception, therefore, neither compromises on, nor
disregards, the aspect of consent of the woman to a sexual advance by the man. As against this one
aspect which is common to non-consensual sex between the man and the woman, whether they be
situated in a marital or a nonmarital setting, the impugned Exception, taking into consideration other
differentiating factors, and the element of overwhelming public interest in preserving the marital
institution, treats the two situations as different and unequal and, therefore, extends to them,
different treatments, which, it is submitted, also is entirely in sync with Article 14 and its mandate, as
it refuses to treat, as equal, two situations which are clearly not comparable with each other

It is submitted that in order to ensure that reasonable consequences follow for the violation of
consent within the marriage, the provisions of Sections 354, 354A and 354B and 498A of IPCand
Protection of Women from Domestic Violence Act, 2005 have been enacted to specifically include
sexual activity with the wife by a husband without her consent within the institution of marriage. It is
submitted that this shall ensure that the action/mischief of “marital rape”, as contemplated by the
Petitioners, results in appropriate legal and penal consequences.

In the fast growing and ever changing social and family structure, misuse of the amended provisions
can also not be ruled out, as it would be 38 difficult and challenging for a person to prove whether
consent was there or not.

Hon speaker and members of this house I think that criminalising marital rape could destabilize the
‘delicate balance’ of conjugal relationships and could create significant disturbances within the
institution of marriage. I also say that the non-consensual acts within marriage, already attract penal
consequences under the Domestic Violence Act (DVA) and other provisions of the penal code
thereby protecting the right and dignity of a woman even within the institution of marriage. I also
think that before criminalising this the concept of marriage and family should be understood
properly.