'Husband Forcing Wife To Sex Is Not The Same As Getting Raped By Stranger,' What Delhi HC Said

The Delhi High Court on Wednesday, in a split verdict, refused to criminalise marital sex and gave the option to the petitioner to approach the Supreme Court.

Among the two judges, Justice Rajiv Shakdher ruled in favour of striking down the marital rape exception (exception 2 to Section 375 of the Indian Penal Code), held that sexual assault by the husband on his wife which falls within the fold of sec. 375 of the Indian Penal Code needs to be called out as rape.

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However, Justice C Hari Shankar refused to strike down the exception.

In his 200-page verdict, Justice Shankar said that introducing the possibility of a husband being regarded as his spouse's rapist will be completely antithetical to the institution of marriage which is the most pristine institution of mankind, and on which rests the entire bedrock of society.

Justice Shankar said that in this relationship of marriage, which has a unique character and complexity, the legislature has advisedly felt that allegation of ¡°rape¡± has no place and "a legislation that seeks to keep out, from the parameters of such a relationship, any allegation of rape, in my view, is completely immune to interference".

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"There is no inherent fundamental right, in the wife, to have her husband convicted for rape, relatable to Article 21, Article 19, or to any other Article in the Constitution," he said.

It is wrong, but..

A husband forcing his wife to have sex with him, despite her unwillingness is wrong, the judge said.

However, when a woman decides to marry a man, she consciously and willingly enters into a relation in which sex is an integral part and the woman gives her husband the right to expect meaningful conjugal relations, Justice Shankar opined.

"If, therefore, the man, in such a situation, requests her, on a particular occasion to have sex, he is exercising a right that vests in him by marriage, and requests his wife to discharge an obligation which, too, devolves on her by marriage," the judgment said.

Thus, the same cannot be equated with that of rape by a stranger, it was held.

If the wife refuses & the husband, nonetheless, has sex with her, howsoever one may disapprove, it can't be equated with the act of ravishing by a stranger. Nor can the impact on the wife, be equated with the impact of a woman who is raped by a stranger : Justice Hari Shankar.

¡ª Live Law (@LiveLawIndia) May 11, 2022

¡°If the wife refuses, and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger. Nor can the impact on the wife, in such a situation, be equated with the impact of a woman who is raped by a stranger,¡± the judgment said further.

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¡°I am firmly of the view that, in thus treating sexual acts between a husband and wife, whether consensual or non-consensual, differently from non-consensual sexual acts between a man and woman not bound to each other by marriage, the legislature cannot be said to have acted unconstitutionally. The distinction in my view, is founded on an intelligible differentia having a rational nexus to the object sought to be achieved by the impugned exception, which fulfils not only a legal but also a laudatory object, and does not compromise any fundamental rights guaranteed by Part III of the Constitution,¡± he said.

Given the unquestionable qualitative distinction which exists between sexual relations in a marriage, vis-¨¤-vis sexual relations between strangers, if the legislature has, in its wisdom, decided to treat non-consensual sex by a man with a woman, where the woman is a stranger, as.

¡ª Live Law (@LiveLawIndia) May 11, 2022

Marriage is the bedrock of society

¡°Marriage is neither a playground, nor a gladiatorial arena. It is the most pristine institution of mankind, on which the entire bedrock of society rests. The importance of marriage, and the relationship between a husband and wife joined in holy matrimony ¨C Mr Rao's (amicus curiae) submission that marriage is no longer considered sacred in law being, to my mind, completely unacceptable ¨C cannot be undermined,¡± he said.

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He said if the petitioners' submissions are accepted then the daughter born of such an act would be a product of rape and even though the child has been born out of wedlock and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling.

Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376, were her mother to prosecute, he said, and added that the exception results in no prejudice, at all, to the fundamental rights of wives.

Husband is not entitled to coerce wife into sex

He, however, said marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined and the exception does not, however, either expressly or by necessary implication confer an entitlement on the husband to insist on sex with his wife against her willingness or consent.

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¡°At the highest, all that the court can do in such a situation, is to recommend, to the legislature, to take a view in the matter, setting out what, in the perception of the court, is the right approach. The legislature would not be bound to agree with the Court, or to follow the view suggested, for the simple reason that the legislature is a microcosm of the 130 crores that constitute the populace of the country, and represents their collective will and wisdom,¡± Justice Shankar said.

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