Marriage Does Not Mean a Woman Always Consents to Physical Relations, says Delhi HC

Team SoOLEGAL 18 Jul 2018 6:00pm

Marriage Does Not Mean a Woman Always Consents to Physical Relations, says Delhi HC

The Delhi HC, while hearing a bunch of pleas seeking criminalisation of marital rape, observed that marriage does not mean that a woman is always consenting for physical relations with her husband.  

The oral observations were made on Tuesday by a two-judge bench of Chief Justice Gita Mittal and Justice C Hari Shankar.

During the hearing, the HC bench was quoted as saying,

 “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 Court also disagreed with the submission of NGO Men Welfare Trust – who is one of the petitioners opposing the plea to make marital rape an offence – that “use of force” or “threat of force” is the important element necessary to constitute rape.

“It is incorrect to say that (physical) force is necessary to look for injuries in a rape, Today, the definition of rape is completely different”, the bench said.

Amit Lakhani and Ritwik Bisaria, appearing for the NGO Men Welfare Trust, however, argued that a married woman already has protection from sexual violence in marriage under laws such as the Domestic Violence Act, harassment to married woman, sexual intercourse with wife without her consent while she is living separately and unnatural sex.

At this point, the court said, if it is already covered under the laws, then why should there be an exception in Section 375 of the IPC, which states a sexual act by a man with his wife is not rape.

The court then said, “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 expenses 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 arguments, however, remained inconclusive. The matter will next be heard on August 8.

Tagged: Delhi High Court   Criminalisation of Marital Rape   NGO Men Welfare Trust   Marital Rape   Rape Cases   Section 375  
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