In response to petitions contesting the constitutionality of Indian Penal Code Section 375, Exception 2, which exempts marital rape from criminal prosecution, the Center recently filed an affidavit.
The declaration emphasizes the necessity for a complete legislative strategy rather than a just legal one, arguing that overturning this exception could have substantial ramifications for the institution of marriage.
According to the Center, criminalizing marital rape may strain married relationships and make it more difficult to obtain permission, particularly in light of changing societal dynamics.
It emphasized that many types of sexual abuse are covered under Section 375, which upholds that the current legal system appropriately handles these problems while honoring the nature of married partnerships.
“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 difficult and challenging for a person to prove whether consent was there or not,” the document stated, according to ANI.
“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-a-vis their wives, given the intelligible differentia that exists in a marital relationship vis-a-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 Center argued.
The Center stated that “while exercising such judicial review on such subjects (marital rape), it is to be appreciated that the present question is not only a constitutional question, but essentially a social question on which the Parliament, after being apprised and being aware of all sides of the opinion on the present issue, has taken a position.”
Additionally, the Center pointed out that Parliament chose to keep this exception in place in 2013 despite conflicting views because they thought that the intricate dynamics of marriage required rigorous legislative analysis. It referenced the 172nd Report of the Law Commission, which recommended against eliminating the exception in order to prevent undue interference with marriage.