Marital Rape Hearing- Marriage doesn’t mean wife always ready for sex: Delhi High Court

Date :19/07/2018

Marriage does not mean that a woman is always consenting for physical relations with her husband, the Delhi High Court on Tuesday observed and also held that physical force is not nececessary for constituting the offence of rape. 

 
Hearing petitions requesting criminalisation of marital rape, the Delhi High Court allegedly asserted that marriage does not imply that the wife should always agree to have physical relations with her better half.
 
The court in its observation held that physical power isn't essential for constituting the offense of rape. A seat of Acting Chief Justice Gita Mittal and C Hari Shankar said that in a relationship like marriage, both man and lady have a right to say 'no' to physical relations.
 
All India Democratic Women's Association had filed a petition to the Delhi High Court in July, 2017,  of the Exception to Section 375 of the Indian Penal Code, 1860. AIDWA, established in 1981,is the largest women's association in India, focused on accomplishing democracy, equity and women's liberation. 
 
The writ appeal filed by them challenges the exemption to Section 375 bringing up that "By depriving married women from availing the existing criminal remedy for rape through this legal fiction, the marital rape exception violates Articles 14, 15(1) and 21 of the Constitution." Article 14 of the Indian constitution expresses that all citizens of India are to be treat with equality by the law, independent of their religion, race, cast, sex, or place of birth. 
 
The applicant deferentially brings up that via cutting out two classes of women, married and unmarried, and by denying the former the rights that are offered to the latter, IPC violates the married women's right to equality.
 
The plea to make marital rape a criminal offense is being challenged by the non-profit organisation Men Welfare Trust. The court didn’t agree to their contention that the use of force or threat of force is important elements to constitute rape. Kolkata based NGO, Hridaya, had likewise prior restricted the request to make marital rape a criminal offense, in light of the fact that assent for physical relationship is forever, when a man enters the foundation of marriage.
 
The bench stated, "It is incorrect to say that force is necessary for rape. It is not necessary to look for injuries in a rape. Today, the definition of rape is completely different." 
 
“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.
 
The NGO's representatives Amit Lakhani and Ritwik Bisaria contended that a wife already  has assurance from sexual violence in a marriage under the accessible laws, including Prevention of Women from Domestic Violence Act,harassment to a married woman, sex with the wife without her assent while she is living independently and unnatural sex. 
 
To this, the court stated, in the event that it was at that point secured under different laws, for what reason ought to there be an exemption in Section 375 of the IPC, which says intercourse or a sexual act by a man with his better half isn't assault.
 
“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. 
 
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 observed.
 
The court has now fixed the next date of hearing on August 8.
 
 
 
 
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