Woman has the ‘right to say no’, but removing exception in law on marital rape needs serious consideration: HC

🔴 Observing that if it is rape, then it has to be punished, Justice Shankar said that the legislature has accepted “a situation” when the parties are married and the court has to see whether there is a case made out for striking down the exception.

The arguments in the case took place before the special bench of Justice Rajiv Shakdher and Justice Shankar. (File image)

Written by: Sofi Ahsan

4 min readNew DelhiJan 10, 2022 11:28 PM IST First published on: Jan 10, 2022 at 11:26 PM IST

The Delhi High Court Monday said that there can be no compromise about the fact that a woman has a right to sexual autonomy and the ‘right to say no’, but added that it would require an “incisive approach” to decide whether even a single instance of unwilling sex by a husband with his wife can be termed rape which will then entail an imprisonment of 10 years.

“There can be no compromise about that fact that a woman has right to sexual autonomy, bodily integrity and right to say no. The husband has no business to compel her to a sexual relationship if she is not willing but that kind of obfuscates the issue which is… should we knock of this exception [of marital rape under law] and make it rape under 375 and subject it punishment under Section 376,” observed Justice C Hari Shankar during the hearing of a bunch of petitions which challenge the legal exception that protects the men who have forced non-consensual intercourse with their wives.

The arguments in the case took place before the special bench of Justice Rajiv Shakdher and Justice Shankar. The court clarified that the observations are prima facie and may change as their hearing in the case progresses. Advocate Karuna Nundy made the arguments on behalf of All India Democratic Women’s Association and RIT Foundation earlier.

Observing that if it is rape, then it has to be punished, Justice Shankar said that the legislature has accepted “a situation” when the parties are married and the court has to see whether there is a case made out for striking down the exception. The judge added that Section 375 IPC defines rape in a “very very wide manner”.

“If the legislature felt that we should not put this kind of pressure if the parties are married where even a single instance of unwilling sex can have this man behind bars for 10 years… that is why I brought up the punishment…. We pull out the exception… We are going to say that not only this man is guilty of rape, even one occasion, he is guilty of rape… he is called a rapist… he will also be inside for 10 years,” said Justice Shankar.

Observing that these aspects would require a serious consideration, Justice Shankar said that there is a difference when the couple is not married. Howsoever close the relationship, the court said that neither of the parties in that relationship “has any right to expect sexual congress” as same is “a matter of accommodation” only.

“In a marital relationship, there is a qualitative difference. There is an expectation of conjugal relationship from both parties. When a party gets married, a person has an expectation and to a certain extent the right also… There is an expectation and at least a social and to some extent even a legal right to expect normal sexual relationship with your partner. It does not exist where the parties are not married. So, there is a qualitative difference in which the parties are married and when the parties are not married. Prima facie, this qualitative difference has a part to play in the exception that has been added to Section 375,” added Justice Shankar.

Nundy earlier argued that the legal exception which protects marital rape is violative of Article 14 and also violates a married woman’s right to dignity, liberty, and personal and sexual autonomy.