“It is submitted that 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. This Hon’ble Court has further adopted a balancing approach in order to reconcile in the perceivable engagement between fundamental rights,” the affidavit stated

This is the first time that the government has on record opposed the striking down the marital rape exception. In 2022, before the Delhi High Court, the union government had said that the “issue needs wider consultations”[…]
“Insofar as UOI is concerned, Mr Tushar Mehta, learned Solicitor General stated before us in no uncertain terms that UOI does not wish to take a stand in the matter. In fact, affidavit(s) were filed to the effect that UOI would like to engage in consultation before moving further in the matter.” The two-judge bench of the HC had noted while delivering a split verdict[…]
In a 49-page affidavit filed by the Ministry of Home Affairs, the Centre acknowledged marital rape as an act “ought to be illegal and criminalised.” However, its prescription for the crime was a refrain since the “consequences of such violations within marriage differ from those outside it”

“It is submitted that the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalised. 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”