As the Supreme Court considers petitions challenging Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, the Union government has maintained that any decision to criminalise marital rape must be taken by Parliament rather than the judiciary.

The petitioners have argued that the exception deprives married women of bodily autonomy by excluding certain acts within marriage from the legal definition of rape. The Centre, however, has opposed judicially striking down the provision, citing the social character of marriage, concerns over the application of criminal law within marital relationships and the need for legislative consultation before introducing a major new penal offence.

Centre Says Marriage Has A Distinct Social And Legal Character

A central element of the government’s position is that marriage in India occupies a distinct social and cultural space and cannot be assessed solely through an individualistic legal framework.

The Centre has argued that marriage creates reciprocal social and civil rights between spouses. According to this position, introducing rape as a criminal charge within an ongoing marriage could have consequences for the institution and may make reconciliation impossible by attaching severe criminal penalties to marital disputes.

Government affidavits have also argued against directly adopting legal models developed in Western countries without accounting for India’s own social conditions, family structures, economic dependencies and cultural realities.

The Centre’s position is that any change to the criminal law governing marriage must take these circumstances into account through a wider legislative process.

Proof Of Consent Raises Concerns In Marital Relationships

The government and legal analysts have also pointed to evidentiary difficulties that may arise in prosecuting allegations of sexual assault within an ongoing marriage.

Questions surrounding consent can become particularly complex when spouses are living together, with the alleged incident often taking place in a private setting and without independent witnesses.

Authorities have raised concerns that such cases could result in difficult and prolonged trials and may present significant challenges in establishing the absence of consent before a criminal court.

Another concern cited in arguments surrounding the issue is the possible misuse of stringent criminal provisions during marital disputes.

Authorities have drawn attention to allegations of misuse that have previously been associated with provisions relating to domestic cruelty and dowry-related offences.

Centre Resists Supreme Court Intervention

By opposing the judicial removal of the exception, the Centre has emphasised that the creation or expansion of a major criminal offence falls within the legislative domain.

Government law officers have argued that criminalising marital rape would require a wider process involving consultations with stakeholders, parliamentary debate and the framing of appropriate legal safeguards.

The Centre has maintained that such a significant change should not result from a judicial declaration but should instead follow a decision by Parliament to amend the law.

Until such a legislative change is made, the government has argued that existing laws dealing with domestic violence, cruelty and physical assault provide legal remedies to spouses who face abuse.

Supreme Court Challenge Focuses On Bodily Autonomy

The petitions before the Supreme Court challenge Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, the provision that replaced Section 375 of the Indian Penal Code under India’s new criminal laws.

The petitioners have argued that retaining the exception denies married women equal protection and bodily autonomy by treating sexual violence within marriage differently from sexual violence outside it.

The Centre’s position, however, remains that the question involves wider social, legal and procedural consequences that require Parliament to determine the scope of any future criminal law.

The case has therefore brought into focus a broader debate over the limits of judicial intervention in criminal law and whether the existing marital rape exception should be reconsidered through a court ruling or through legislation passed by Parliament.

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