Any act of rape punishable but marital relationship qualitatively different, says Delhi HC

The Delhi High Court said that while there can be no compromise with womens right to sexual autonomy and any act of rape has to be punished there is a qualitative difference between a marital and a nonmarital relationship as the former entailed a legal right to expect reasonable sexual relation from the spouse and it played a part in the marital rape exemption in criminal lawJustice C Hari Shankar who formed part of the division bench hearing a batch of petitions seeking criminalisation of marital rape orally observed that a nonmarital relation no matter how close and a marital relationship cannot be parallelisedThe court questioned as to why the exception from the offence of rape granted to a married couple had remained in the legislature for several years in spite of developments suggesting the contrary and remarked that one of the possible reasons was the wide scope of Section 375 of Indian Penal Code which included even a single act of unwilling sex as rapeLets take a newly married couple If the wife says not today and the husband says then Im going out of the house then it is rape if we knock off the exception and I am not in agreement A boy and girl howsoever close neither have the right to expect sexual congress There is an absolute right to each to say I will not have sex with you In a marriage there is a qualitative difference Justice Shankar saidWhen a party gets married there is a right it can lead to divorce a legal right to expect a normal reasonable sexual relationship with your partner That qualitative difference has a part to play in the exception explained the judge clarifying that he was neither expressing his final opinion on the petitions nor examining whether marital rape should be punished at this stage Justice Shankar also emphasised that the offence of rape was punishable with 10 years imprisonment and the issue of removal of marital rape exemption required serious consideration There is no compromise with a womans right to sexual and bodily integrityA husband has no business to compel But the court cant ignore what happens with we knock it marital rape exception off he stated The judge also expressed his reservations with regards to the use of the term marital rape saying that every act of rape has to be punished and repeated use of marital rape to define any form of an unwilling sexual relationship between a husband and a wife was a predecisionThere is no concept of marital rape in India If it is rape marital nonmarital or any kind it has to be punished Repeated use of the word according to me obfuscates the actual issue he said The judge also said that in his prima facie opinion concerns surrounding misuse were not relevant to deciding the issue of criminalising marital rapeThe bench headed by Justice Rajiv Shakdher who stated that he would reserve his comment and clarified that the court was having an open discussion was hearing PILs were filed by NGOs RIT Foundation and All India Democratic Womens Association a man and a woman seeking striking down of the exception granted to husbands under the Indian rape lawAdvocate Karuna Nundy appearing for the NGOs argued that the marital rape exception created an anomaly as it was underinclusive and violated Articles 14 151 and 21 of the Constitution She contended that the exemption violated the right to dignity and sexual autonomy of women and there were thousands of victims who approached her clients for protectionLast week the petitioners had said that marital rape was the biggest form of sexual violence against women and the Delhi government had said that this act was already covered as a crime of cruelty under IPC In 2018 the city government had told the predecessor bench hearing the case headed by then Acting Chief Justice Gita Mittal that wherever a spouse indulged in sexual relations without the willingness of the other it was already an offence under IPC and a woman was entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy under Article 21 protection of life and personal liberty of the ConstitutionThe central government in its affidavit filed in the case has said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands The NGOs have challenged the constitutionality of section 375 IPC on the ground that it discriminated against married women being sexually assaulted by their husbands The hearing in the case will continue on January 11This story has been sourced from a third party syndicated feed agencies Midday accepts no responsibility or liability for its dependability trustworthiness reliability and data of the text Midday managementmiddaycom reserves the sole right to alter delete or remove without notice the content in its absolute discretion for any reason whatsoever