The Delhi high court on July 17, 2018 ruled that marriage does not mean woman’s consent to sexual relation with her husband.
A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar said that in a relationship like marriage, both man and woman have a right to say ‘no’ to physical relations.
The court’s observation came while hearing pleas seeking to make marital rape an offence.
The plea was filed by NGO RIT Foundation and the All India Democratic Women’s Association, that have challenged the constitutionality of Section 375 (which defines rape) of the IPC on the ground that it discriminates against married women being sexually assaulted by their husbands.
The petitions have also sought setting aside the exception in the rape law that protects husbands, saying that it violates the right to equality, freedom and to live life with dignity provided under the Constitution.
• Marriage does not mean that the woman is all the time ready, willing and consenting for sexual relations. The man will have to prove that she was a consenting party.
• The court also held that physical force is not necessary for constituting the offence of rape. It is not necessary to look for injuries in a rape.
• Rape could also constitute forcing someone to have sex through blackmail or by threatening financial constraints.
Opposition Party’s claim
The bench did not agree with the NGO Men Welfare Trust that asserted that in spousal sexual violence, the use of force or threat of force are important elements to constitute the offence. The NGO opposed the plea to make marital rape an offence.
The NGO argued that a wife already has protection from sexual violence in a marriage under the Protection of Women from Domestic Violence Act, which covers harassment to married woman, sexual intercourse with a wife without her consent while she is living separately and unnatural sex.
To this, the court claimed that if it was already covered under the other laws, why should there be an exception in Section 375 of the Indian Penal Code (IPC), which says intercourse or sexual act by a man with his wife is not rape.
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