In a country that takes pride in its vibrant democracy and where women are worshipped in more ways than one, the recent affidavit filed by the Centre before the Supreme Court regarding marital rape is nothing short of disheartening. Ever since the topic has come up for discussion, we have repeatedly heard the comment that criminalising marital rape would "destabilise the institution of marriage."

This raises an important question: What stability are we really aiming at? And what exactly needs to be safeguarded? Is the sanctity of marriage as an institution more important than the individual dignity, rights, and agency of women? It is a fact that the institution of marriage, as important as it may sound to those propagating age-old values and culture, is a harrowing experience for many.

Data from the National Family Health Survey (NFHS-5) underscores the extent of this problem. According to the survey, a staggering 29.3 per cent of married women aged 18-49 have experienced some form of physical, sexual, or emotional violence by their husbands. More alarmingly, 6 per cent of married women reported having faced sexual violence, specifically at the hands of their husbands. This translates to millions of Indian women trapped in marital relationships where abuse is a daily reality. And then, some silently endure the violence inflicted upon them simply because they were taught from childhood that "pati parmeshwar hota hai" (the husband is god).

Moreover, there have been several cases where a woman accused her husband and his friends of gang rape, but the husband was acquitted because rape charges cannot be brought against a husband due to the marital rape exception (MRE) under Exception 2 to Section 375 of the erstwhile Indian Penal Code (IPC) and its parallel provision in the Bharatiya Nyaya Sanhita, 2023. In other words, the law continues to deny women any recourse, treating them as second-class citizens.

In 2022, the Karnataka High Court carved out a small but significant exception to the marital rape exemption, offering relief to women trapped in abusive marriages. Justice M Nagaprasanna, while delivering the verdict, posed a vital question: Does a woman's consent to marriage imply consent to all forms of sexual acts, including brutal and dehumanising ones?

The High Court held that consent is not a one-time, blanket permission. If a wife does not consent, the accused husband should not be allowed to hide behind the marital rape exception. This interpretation challenged the very foundation of the marital rape exemption and highlighted the need for a comprehensive change in the law. However, the new Act has retained this archaic provision without considering the government data that speaks of the extent of spousal violence, whether from NFHS or NCRB (National Crime Records Bureau).

The recent affidavit filed by the Union government before the Supreme Court in the Hrishikesh Sahoo vs the State of Karnataka and Others case reiterates the age-old belief that criminalising marital rape could "destabilise the institution of marriage" and may be "misused" by wives. This argument is deeply rooted in a patriarchal mindset that views marriage as a man's dominion over a woman's body. The government has not only ignored the progressive ruling of the Karnataka High Court but has also sent a dangerous message: that maintaining marital stability is more important than ensuring a woman's right to say "no."

Yes, ensuring that the law is not misused is essential, but that should not act as a deterrent to enacting the statute. Legislators should make provisions to ensure its proper implementation.

It is important to understand that by providing a protective shield to abusive husbands, we are not only perpetuating violence but also sending a message to the younger generation that "women do not have a protective agency. Once they marry, they become the property of men, granting men unlimited sexual access to women's bodies, stripping them of autonomy and consent." This position contradicts the very principles of equality, dignity, and justice enshrined in the Constitution. The implicit message is clear: A woman's consent is secondary to the preservation of the so-called "sanctity" of marriage.

Furthermore, the Centre's affidavit argues that existing laws like the Protection of Women from Domestic Violence Act, 2005, provide adequate protection for married women facing sexual violence. This argument is flawed, as no law specifically criminalises non-consensual sex within marriage. Suggesting that marital rape should be handled through provisions dealing with "outraging modesty" or "cruelty" trivialises the severe trauma and long-lasting impact that rape has on a survivor, whether married or unmarried.

It is important to note that 150 countries have already criminalised marital rape, recognising that consent is a cornerstone of any sexual relationship, whether inside or outside marriage. India's continued adherence to this exception places it in an embarrassing minority, contradicting its constitutional commitment to gender equality and its international obligations to eliminate all forms of violence and discrimination against women.

The affidavit also cites a report published by the National Commission for Women (NCW) in 2022, advocating for the retention of the marital rape exception. It argues that treating married and unmarried women similarly would lead to "destitution for the wife and dependent children." This only reinforces the archaic belief that women should endure sexual violence for the sake of preserving the family unit and ignores the devastating impact such abuse has on their physical and mental well-being. If the government is truly concerned about the well-being of women and children, it should focus on strengthening social security measures and support systems rather than endorsing a law that legitimises violence within marriage.

The ongoing hearings before the Supreme Court are pivotal for women's rights in India. The judiciary must recognise that by maintaining the marital rape exception, the law effectively tells women that their autonomy and dignity are subordinate to the preservation of marriage. This is nothing short of betrayal. The right to consent or to say "no" must be respected, regardless of marital status.

It is time for the Supreme Court to repeal this age-old exception and send a clear message that no woman should be forced to endure rape and abuse in the name of marriage. The government's position only reiterates the deep-rooted patriarchal mindset that attempts to balance a husband's "legitimate expectations" against a woman's right to bodily autonomy. We cannot claim to champion women's rights while upholding a provision that dehumanises them.

Besides, a marriage based on fear, coercion, or submission is already a broken institution. Equating stability with silent endurance of abuse is not only morally unacceptable but also legally flawed and against natural justice. The right to bodily integrity and dignity cannot, and should not, be surrendered at the altar of wedlock.

It is time we reimagined marriage as a partnership built on mutual respect, trust, and consent—values that a law criminalising marital rape would reinforce, not destroy. By accepting the argument that criminalising such acts would harm the institution of marriage, we inadvertently admit that abuse and control are integral to it. This ideology must be shattered if we aim to achieve a "Viksit Bharat" based on equality and justice.