Any act of rape punishable but marital relationship qualitatively different, says Delhi HC

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The Delhi High Court said that while there can be no compromise with women's right to sexual autonomy and any act of rape has to be punished, there is a "qualitative difference" between a marital and a non-marital relationship as the former entailed a legal right to expect reasonable sexual relation from the spouse and it played a part in the marital rape exemption in criminal law.

Justice C Hari Shankar, who formed part of the division bench hearing a batch of petitions seeking criminalisation of marital rape, orally observed that a non-marital relation, no matter how close, and a marital relationship cannot be "parallelised".

The court questioned as to why the exception from the offence of rape granted to a married couple had remained in the legislature for several years in spite of developments suggesting the contrary and remarked that "one of the possible reasons" was the wide scope of Section 375 of Indian Penal Code which included even a single act of "unwilling sex" as rape.

"Let's take a newly married couple... If the wife says not today and the husband says then I'm going (out of the house), then it is rape if we knock off the exception and I am not in agreement. A boy and girl, howsoever close, neither have the right to expect sexual congress. There is an absolute right to each to say I will not have sex with you. In a marriage, there is a qualitative difference," Justice Shankar said.

"When a party gets married, there is a right "it can lead to divorce" a legal right to expect a normal, reasonable sexual relationship with your partner... That qualitative difference has a part to play in the exception," explained the judge, clarifying that he was neither expressing his final opinion on the petitions nor examining "whether marital rape should be punished" at this stage. Justice Shankar also emphasised that the offence of rape was punishable with 10 years imprisonment and the issue of removal of marital rape exemption required "serious consideration". "There is no compromise with a woman's right to sexual and bodily integrity.

A husband has no business to compel. (But) the court can't ignore what happens with we knock it (marital rape exception) off," he stated. The judge also expressed his reservations with regards to the use of the term "marital rape", saying that every act of rape has to be punished and repeated use of "marital rape" to define any form of an unwilling sexual relationship between a husband and a wife was a "pre-decision".

"There is no (concept of) marital rape in India... If it is rape "marital, non-marital or any kind, it has to be punished. Repeated use of the word, according to me, obfuscates the actual issue," he said. The judge also said that in his prima facie opinion, concerns surrounding misuse were not relevant to deciding the issue of criminalising marital rape.

The bench headed by Justice Rajiv Shakdher -- who stated that he would "reserve" his comment" and clarified that the court was having an open discussion -- was hearing PILs were filed by NGOs -- RIT Foundation and All India Democratic Women's Association -- a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.

Advocate Karuna Nundy, appearing for the NGOs, argued that the marital rape exception created an anomaly as it was "under-inclusive" and violated Articles 14, 15(1) and 21 of the Constitution. She contended that the exemption violated the right to dignity and sexual autonomy of women and there were thousands of victims who approached her clients for protection.

Last week, the petitioners had said that marital rape was the biggest form of sexual violence against women and the Delhi government had said that this act was already covered as a "crime of cruelty" under IPC. In 2018, the city government had told the predecessor bench hearing the case -- headed by then Acting Chief Justice Gita Mittal -- that wherever a spouse indulged in sexual relations without the willingness of the other, it was already an offence under IPC and a woman was entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy under Article 21 (protection of life and personal liberty) of the Constitution.

The central government, in its affidavit filed in the case, has said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands. The NGOs have challenged the constitutionality of section 375 IPC on the ground that it discriminated against married women being sexually assaulted by their husbands. The hearing in the case will continue on January 11.

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