Marriage Doesn't Imply a Woman Always Consents to Sex, Says Delhi High Court

The court, hearing petitions for and against making marital rape an offence, also said that the definition of rape now goes beyond only the use of force.

New Delhi: Marriage does not mean that a woman always consents to sexual relations with her husband, the Delhi high court observed on Tuesday, and also held that physical force is not necessary for constituting the offence of rape.

A bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar said that in a relationship like marriage, both man and woman have a right to say ‘no’ to physical relations.

The court’s observation came while hearing pleas seeking to make marital rape an offence and others opposing them.

“Marriage does not mean that the woman is all the time ready, willing and consenting (for sexual 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. Rape could also constitute forcing someone to have sex through blackmail or by threatening financial constraints, the Indian Express reported.

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 the Protection of Women from Domestic Violence Act, which covers harassment to married woman, sexual intercourse with a 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 an exception in Section 375 of the Indian Penal Code, which says intercourse or 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 filed a rape case against the husband, what will happen,” the court said.

“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,” Indian Express quoted the judges as saying.

Men Welfare Trust is opposing the petitions filed by NGO RIT Foundation and the All India Democratic Women’s Association, which have challenged the constitutionality of Section 375 (which defines rape) of the IPC on the ground that it discriminates against married women being sexually assaulted by their husbands.

The arguments will continue on August 8, the next date of hearing.

Earlier, Kolkata-based NGO Hridaya had also opposed the plea to make marital rape an offence, saying permanent consent for physical relations is a given 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 have 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.

In October 2017, the Supreme Court had ruled that the cut-off age in the exception is 18 and not 15 as the IPC said, and sex with a minor wife will count as rape in all cases.

The petitions have also sought setting aside 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 “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.

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. The Union Ministry of Women and Child Development had also said that the idea of marital rape “cannot be suitably applied in the Indian context”. However, the government’s own data, collected during the National Health and Family Survey (NFHS-4), show that 5.4% of women have experienced marital rape, recorded under the category “Physically forced her to have sexual intercourse with him even when she did not want to”.

(With PTI inputs)