[Marital rape] Married parties may have right to expect sexual relationship, unmarried couples do not: Delhi High Court remarks

The Delhi High Court on Monday observed that there is a qualitative difference between a married and an unmarried couple, since after marriage, each party has an expectation or even a legal right of conjugal relations [RIT Foundation v. Union of India and Ors]..This difference, Justice C Hari Shankar said, may have a part to play in the exception provided under Section 375 (rape) of the Indian Penal Code which rules out marital rape as constituting an offence under penal law in India. "In a marital relationship, there is a qualitative difference. There is an expectation of conjugal relationship for both parties. We are not recognizing the difference if we are saying that they are at par. When a party gets married, each has an expectation, and to an extent a right also, to expect normal sexual relationship with your partner which does not exist if there is no marriage,” he said..The Bench which also comprised Justice Rajiv Shakdher was hearing a batch of petitions challenging this exception and demanding the criminalisation of marital rape. .Justice Shankar observed that there is no denying the fact that marital rape should be punished. The issue before the Court, Justice Shankar continued, was whether the exception provided in Section 375 is unconstitutional.He said that till now, a lot of arguments have been made on the legal position in the United States and United Kingdom, but that would have no bearing on the case at hand since India has its own sets of precedents, principles and Constitution.The judge attempted to look into why the provision has remained on the statute books despite so many reports.“One possible reason may be because of the manner in which rape is defined in 375. Section 375 defines rape in a very wide manner. It says even a single instance of unwilling sex with the opposite party is enough to call it rape. Now let us take a hypothetical situation. There is a newly married couple. Husband wants to have conjugal relations. Wife say no. Husband says if you do not allow it, I will go out, see you tomorrow morning and then the wife says yes. If we are to knock off the exception, this is rape,” he opined..He added that he was not in agreement with the argument raised by the petitioners that there is no intelligible difference between married and unmarried couples. On sexual relations between unmarried couples, he observed:"If a boy and girl are not married, howsoever close their relationship may be, call it boyfriend-girlfriend, live-in or anything, neither of them has any right to expect sexual congress with the other. Absolutely no right. The law does not recognise any right. Therefore, there is an absolute right on each party to say I will not have sex with you and neither party has any right to expect that he is accredited to have sex with the other party."He said that, prima facie, he feels that this qualitative difference has a part to play in the exception given to Section 375 of the IPC.“We are not here on whether marital rape should be punished. We are here on the question whether in such a situation the man should be held guilty of rape, because that is what we are doing if we strike down the exception, and we are doing something that the legislature felt is not correct. And the legislature still feels it is correct. So, if the legislature thinks it has something to do with the qualitative difference of the marital relationship, that is an aspect which has to be addressed when you are attacking the constitutionality of the provision. We cannot treat it as or parallelize it with an unmarried relationship.”.Justice Shankar went on to state that if the exception is pulled out from Section 375, then even if on one occasion the husband does the act, he is guilty of rape and will be sent behind bars for 10 years.“What is happening is that today if this act is committed, the man has not committed an offence, we knock out the exception, tomorrow if the same man does the same thing, he has created an offence. So qualitatively we may go into semantics and say this is creation of an offence and not creation of an offence. I don't know if we can say that. We are at least rendering an act which was not, prior to our judgment, an offence. So, to that extent we have created an offence. These are all aspects which do perturb me.".Justice Shakhder, however, made it clear that these were not the views of the Bench, as it was still hearing the matter.“I may also have views but I would like to reserve them for now,” he said.Justice Shankar meanwhile clarified he has not made up his mind as yet and that these are only his observations.“I am known for the fact that even during the judgment, I change my mind,” he added..Earlier, advocate Karuna Nundy argued that marital rape violates a woman's right to dignity, personal and sexual autonomy and her right to self-expression enshrined under the Constitution of India. She added that if a wife does not have the right to say no to her husband, then she does not have the right to freely say yes either.“Harm is not dependent on being married or not. This is the man who was supposed to protect me. It is not slapping in public but it is the rape which is most violative of my self,” she argued.Nundy also argued that a minuscule proportion of marital rape case are reported and of those, the number of false cases is even smaller.“Married women hesitate to report such incidents even to their lady health visitors. While all criminal justice suffers from ‘false negative’ i.e. acquittal of the guilty and ‘false positives’ or conviction of the innocent, there is no evidence that false cases concerning rape and sexual assault in case where the assaulted and accused have prior sexual relationship are misused more than other criminal laws,” she submitted. Citing the National Family Health Survey (NFHS) data she further argued that among married women who were victims of sexual violence, over 83% experienced it from their husbands and in 9% cases, former husband was the perpetrator.“An estimated 99.1% of the sexual violence cases are not reported, and in most such instances, the perpetrator is the husband of the victim. Evidence suggests that a woman is 17 times more likely to face sexual violence from her husband than from others,” she contended. .The Court has now listed the case for further arguments on Tuesday, when Advocate Raghav Awasthi will make his submissions for the petitioners, followed by arguments by the Delhi and Central governments.