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Delhi High Court On Marital Rape: “Qualitative Difference” Between Marital And Non-Marital Relationship Provide Husband With Protection From Rape Charges

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Marital rape has been a topic of discussion for a very long time now. The debate to criminalise or to not criminalise has been going on and on and on. While we’ve heard several people claim that marital rape cannot be criminalised as it is a husband’s right to establish conjugal rights, I personally believe that marriage does not take away a woman’s basic rights to sexual and bodily autonomy. Marriage should not take away a woman’s right to say ‘no’ to sex. Consent should be important even in a marriage. Marriage is a sacred relationship and consent should not be irrevocable in this relationship. But the Delhi High Court has an interesting take on marital rape that has raised a crucial question and given us some food for thought. While hearing a batch of petitions seeking criminalisation of marital rape, the Delhi High Court said that while there cannot be a compromise with a woman’s right to sexual autonomy, the husbands are protected from rape charges under the Indian Penal Code due to the ‘qualitative difference’ been marital and non-marital relationships which gives them a legal right to expect a sexual relationship from their spouse.

Discussing the reason behind marital rape exemption in criminal law, Justice C Hari Shankar, who was a part of the division bench hearing the petitions, said that non-marital relationships and marital relationships cannot be ‘parallelised’. The court further questioned why the exception from the offence of rape given to a married couple has been in the legislature for so long despite the current situations suggesting the opposite. It further pointed out that the reason behind this is possibly due to Section 375 of the Indian Penal Code defines rape in a rather wide manner. Due to this even a single instance of unwilling sex with someone can be termed rape.

Justice Shankar also shared an example. Imagine a newly married couple, wherein the husband wants to have sex with the wife but she refuses. Once, twice, thrice. But the fourth time, the husband says that he will leave the house if she does not allow him to have sex with her. Now the wife, is such a situation, might give her consent. But isn’t this consent different from a freely given consent then? Justice Shankar pointed out how removing the exception would turn this instance into rape. He went on to add that he does not agree with knocking off the exception.

Justice Shankar of the Delhi High Court shared that in case of a non-marital relationship, no matter how close a boy and girl are (be it boyfriend-girlfriend or live-in) none of them has ‘any right to expect sexual congress with the other’. This gives them the absolute right to say no to sex but in a marital relationship there is a qualitative difference, added the Delhi HC.

Clarifying that this is not his final opinion or his take on whether marital rape should be criminalised or not, Justice Shankar said that marriage gives rise to certain legal rights under which a husband can expect a reasonable sexual relationship with his partner and not having it can give him a right to divorce. Speaking further about the ‘qualitative difference’, Justice Shankar said that while he does believe that marital rape should prima facie be punished and that in terms of a woman’s sexual autonomy, bodily integrity and right to say ‘no’, there cannot be any kind of compromise, it is also essential to understand that there is a qualitative difference which gives rise to the exception. The Delhi High Court pointed out that in the case of a non-marital relationship, lack of consent means that a man is using force but in the case of a marital relationship it’s about exercising a right that has been given to the man socially and legally. Erm, isn’t that the whole point of criminalising marital rape? While I agree with Justice Shankar’s point here, it’s essential to understand that a man cannot be given the right to violate a woman’s body under the garb of marriage. In no sense should marriage mean irrevocable consent.

Justice Shankar also said that the issue of removal of marital rape exemption from Section 375 of IPC required ‘serious consideration’. Discussing his reservations with the use of the term ‘marital rape’, he said that using the term ‘obfuscates the actual issue’. “There is no concept of marital rape in India. The moment we use this expression marital rape, it’s something that I had exceptions to on the very first day and I continue to do so. The moment you call it rape, you come into sec. 375 IPC. If it is rape, it has to be punished, marital, non-marital or any kind. This repeated use of the expression marital rape is something which according to me obfuscates the actual issue before us,” said Justice C Hari Shankar as quoted by LiveLaw.

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The petitions seeking criminalisation of marital rape were filed by NGOs –RIT Foundation and All India Democratic Women’s Association. The petitioners had earlier argued that the exemption not only violated the right to dignity of women but also to their right to sexual autonomy. The petitioners also pointed out that marital rape is a form of sexual violence against women. The Delhi government had pointed out that the same was already covered as a ‘crime of cruelty’ under the Indian Penal Code.

Also Read: Gujarat High Court On Marital Rape: Marriage Is Not Irrevocable Consent, High Time To Reconsider

I have to agree that there is food for thought here considering the severity of the situation but at the same time, I also understand that a man cannot have irrevocable consent just because he is married to the woman. Marriage as a social institution does not allow a man to establish his right over a woman’s body in any sense. While not allowing a man conjugal rights could give rise to civil consequences like divorce, I’d take divorce over rape on any given day. But I have to agree with Justice Shankar that we cannot call it ‘marital rape’ as it pre-defines the situation. Rape is rape, no matter what the relationship is between the man and woman. Another thing to note is that we as a society can allow a man to establish a sexual relationship with his wife but not with force. A man cannot manipulate his wife or coerce her into establishing sexual relations with him just because of their marital status.

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