Marriage does not mean wife submits to husband for sex: Delhi HC on marital rapehttps://indianexpress.com/article/india/marriage-doesnt-mean-wife-submits-to-husband-for-sex-delhi-high-court-on-marital-rape-5263971/

Marriage does not mean wife submits to husband for sex: Delhi HC on marital rape

The Delhi High Court stated: “A rape is a rape. Is it that if you are married, it is okay but if you are not, then it’s a rape? Why it should be exception under 375 of the IPC? Force is not a precondition for rape”.

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The bench shot back, saying: “A rape is a rape. Is it that if you are married, it is okay but if you are not, then it’s a rape? Why it should be exception under 375 of the IPC? Force is not a precondition for rape”.

That rape by a husband has to be accompanied by force is a “myth” — it can happen through blackmail or by putting a woman under financial pressure, the Delhi High Court said on Tuesday. The court further said that “marriage does not mean that she is ready and willing to submit herself for sexual act of her husband”.

A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar made these observations when an NGO, run by a group of men, contended that married women have been given adequate protection under the law against sexual violence by their husbands.

The NGO claimed that in spousal sexual violence, the use of force or threat are important elements to constitute the said offence.

The bench shot back, saying: “A rape is a rape. Is it that if you are married, it is okay but if you are not, then it’s a rape? Why it should be exception under 375 of the IPC? Force is not a precondition for rape”.

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The exception to Section 375 says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.

“Nowadays (the) definition of rape is completely different. Rape by husband has to accompanied with force is a myth. It can be through blackmail or by putting a woman under financial pressure. Also in name of children and other needs of the house, the woman is asked to submit herself,” the Acting Chief observed.

The court was hearing PILs seeking to make marital rape an offence which was opposed by an NGO, Men Welfare Trust, which claimed intercourse or a sexual act by a man with his wife is not rape, is “not unconstitutional” and setting it aside will create more injustice.

Men Welfare Trust was opposing the petitions filed by NGO RIT Foundation and the All India Democratic Women’s Association and a marital rape victim who have challenged the Constitutionality of Section 375 (which defines rape) of the IPC on the ground that it discriminated against married women being sexually assaulted by their husbands.

The bench posed various questions to the trust’s representatives who were made interveners in the matter and asked whether their stand was that a husband has a right to perpetrate sexual offence on his wife and could he force sex on his spouse?

To this, Men Welfare Trust replied in the negative and said there were existing provisions, including domestic violence law, harassment to married woman, unnatural sex, which provide adequate protection to a wife against sexual violence committed by the husband. However, no such protection is given to husbands as laws in India are gender specific, unlike in most parts of the world, they argued.

Hearings will continue on day-to-day basis from August 8, the next date of hearing.

Earlier, Kolkata-based NGO Hridaya had 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 court agreed to examine the issue raised in PILs seeking striking down the exception in the IPC law that does not consider sexual intercourse with a wife, not less than 15 years of age, as rape.

The petitions have also sought setting aside of 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.

The Delhi government had said that quashing the protection husbands enjoy against prosecution for marital rape would lead to the “creation of an offence”, which is a legislative job and courts cannot create or legislate an offence which would be the inevitable outcome of striking down of the exception in the IPC.

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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 become an easy tool for harassing husbands.