Marital Rape Case: Marriage does not mean all-time consent for sexual relations, Delhi  HC
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Marital Rape Case: Marriage does not mean all-time consent for sexual relations, Delhi HC

Meera Emmanuel

In the ongoing case regarding criminalisation of marital rape, the Delhi High Court on Tuesday noted that marriage does not indicate that spouses have ­all-time consent to have physical relations with the other. The Bench observed that both husband and wife have the right to refuse sexual relations.

The oral observation was reportedly made while the Bench of Chief Justice Gita Mittal and Justice C Hari Shankar was hearing the batch of petitions seeking criminalisation of marital rape in India.

The Bench was quoted as saying,

Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party.

The Court also disagreed with the argument that a physical element is necessary to constitute rape.

It is incorrect to say that (physical) force is necessary to look for injuries in a rape, Today, the definition of rape is completely different.

Responding to the stance taken by NGO Men Welfare Trust, which has opposed the criminalisation of marital rape, the Court reportedly remarked,

Force is not a pre-condition of rape. If a man puts his wife under financial constraint and says he will not give her money for household expenses and kids expenses unless she indulges in sex with him and she has to do it under this threat. Later, she filed a rape case against the husband, what will happen?

The report states that the Court was also not satisfied with the contention that married women already have sufficient protection under laws such as the Domestic Violence Act. Addressing this argument, the Court queried as to why there would be an exception to Section 375 reading down rape if there was protection under other laws.

At present, Exception 2 to Section 375 of the Indian Penal Code (IPC), which defines the criminal offence of “rape”, ensures that sexual relations between husband and wife are outside the purview of criminal rape.

However, last year, the Supreme Court read down this exception to criminalise marital rape whether the spouse is a minor. Hence, while child marital rape has been outlawed, the concept of marital rape between adult spouses is not recognised.

The Delhi High Court is however in the midst of hearing petitions filed by the RIT Foundation and the All India Democratic Women’s Association, which have challenged the constitutionality of Section 375, IPC on the ground that it discriminates against women who are sexually assaulted by their husbands.

On its part, the Central Government has expressed its reservations on amending Section 375, opining that the concept of marital rape itself has to be defined precisely before criminalising the same.

In submissions made before the Court, the government has cautioned against criminalising marital rape, on the apprehension that doing so could destabilise the institution of marriage, apart from being an easy tool for harassing the husbands.

Echoing concerns that criminalising marital rape would serve as a tool to harass men, intervenors including NGOs like Men Welfare Trust and Hridaya have also opposed the plea to criminalise marital rape.

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