The Delhi High Court on Monday said that while women’s right to sexual autonomy cannot be compromised and that any act of rape is to be punished, there is a qualitative difference between marital and non-marital relations as the former is legal. rights are included. To expect a spouse to have reasonable sex and this played a part in the marital rape exemption in criminal law.
Justice C Hari Shankar, who formed part of the bench hearing a batch of petitions seeking criminalization of marital rape, orally held that a non-marital relationship, no matter how close, and a marital relationship cannot be parallel Can.
The court questioned why the exception from the offense of rape granted to a married couple remained in the legislature for several years, while Vikas was suggesting the opposite and remarked that one of the possible reasons was the wide scope of Indian Section 375. Penal code which included even a single act of unwilling sex as rape.
“Let’s have a newly married couple… If the wife says no today and the husband says I am going (out of the house), then it is rape if we break the exception and I do not agree. A boy and a girl, No matter how close, no one has the right to expect a sexual congress. Everyone has every right to say that I will not have sex with you. Justice Shankar said there is a qualitative difference in marriage.
When one of the parties is married, there is a right that this may lead to divorce, the legal right to expect a normal, fair sex relationship with their partner… a role to play in the exception to that qualitative difference. The judge clarified that he had neither expressed his final opinion on the petitions nor examined whether marital rape should be punished at this stage.
Justice Shankar also emphasized that the offense of rape is punishable with imprisonment for 10 years and the issue of removal of marital rape exemption needs to be seriously considered.
“There is no compromise with a woman’s right to sexual and physical integrity. The husband has no business to force. (But) the court cannot ignore what happens when we close it (marital rape exception),” he said.
The judge also expressed his objection with regard to the use of the word marital rape, saying that every act of rape should be punished and the bar of marital rape to define any form of unwilling sex between husband and wife- Using the bar was a crime. prior decision.
There is no (concept) of marital rape in India… If this rape is marital, non-marital or of any kind, it should be punished. He said that according to me the repeated use of this word complicates the real issue. The judge also said that in his prima facie opinion, the concern about abuse was not relevant for deciding the issue of criminalization of marital rape.
A bench headed by Justice Rajiv Shakdher – who said he would reserve his remarks and clarified that the court was having an open discussion – was hearing PILs filed by NGOs – RIT Foundation and All India Democratic Women’s Association – a male and ending the exemptions given to husbands under a women’s Indian rape law. Advocate Karuna Nandy, appearing for the NGOs, argued that the marital rape exception created an anomaly as it was less inclusive and violates Articles 14, 15 (1) and 21 of the Constitution.
She argued that the waiver violated women’s right to dignity and sexual autonomy and that there were thousands of victims who approached her clients for protection. Last week, the petitioners had said that marital rape is the biggest form of sexual violence against women and the Delhi government had said that the act was already covered as an “offence of cruelty” under the IPC.
In 2018, the city government had told an earlier bench hearing the case headed by the then Acting Chief Justice Gita Mittal that wherever one spouse has sex without the other’s will, it is already under the IPC. was an offense and a woman was entitled to refuse sexual relations with her husband as a right of bodily integrity and privacy under Article 21 (protection of life and personal liberty) of the Constitution. The central government, in its affidavit filed in the case, has said that marital rape cannot be made a criminal offense as it can become an incident which can destabilize the institution of marriage and become an easy means to harass husbands. .
NGOs have challenged the constitutionality of Section 375 of the IPC on the ground that it discriminates against married women against sexual harassment by their husbands. The hearing of the case will continue on January 11.
With inputs from PTI.
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