The Delhi High Court while hearing pleas seeking to make marital rape an offence, on Tuesday said that marriage does not mean that a woman is always consenting for physical relations with her husband. The court also observed that physical force is not necessary for constituting the offence of rape.
A bench of Acting Chief Justice Gita Mittal and C Hari Shankar said that in a relationship like marriage, both man and woman have a right to say 'no' to physical relations.
"Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party," the bench observed.
It did not agree with the submission of NGO Men Welfare Trust, which is opposing the plea to make marital rape an offence, that in spousal sexual violence, the use of force or threat of force are important elements to constitute the offence.
"It is incorrect to say that (physical) force is necessary for rape. It is not necessary to look for injuries in a rape. Today, the definition of rape is completely different," the court said.
The NGO's representatives Amit Lakhani and Ritwik Bisaria argued that a wife already has protection from sexual violence in a marriage under the available laws, including Prevention of Women from Domestic Violence Act, harassment to married woman, sexual intercourse with wife without her consent while she is living separately and unnatural sex.
To this, the court said, if it was already covered under the other laws, why should there be exception in Section 375 of the IPC, which says intercourse or a sexual act by a man with his wife is not rape.
"Force is not a pre-condition of rape. If a man puts his wife under financial constraint and says he will not give her money for household and kids expenses, unless she indulges in sex with him and she has to do it under this threat. Later, she files a rape case against the husband, what will happen," the court said.
The arguments remained inconclusive. The next date of hearing in the case has been fixed for August 8.
Earlier, Kolkata-based NGO Hridaya had also opposed the plea to make marital rape an offence, saying consent for physical relations is for all time when a person enters the institution of marriage.
The high court had earlier agreed to examine the issue raised in PILs by advocate Karuna Nundy, who represented RIT Foundation and the All India Democratic Women's Association, and a man and a woman, who sought striking down the exception in the Indian penal law that does not consider sexual intercourse with a wife, not less than 15 years of age, as rape.
The Centre has opposed the main petitions saying marital rape cannot be made a criminal offence, as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands.
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