The NGO’s Plea..

The Delhi High Court, while hearing pleas seeking to make marital rape an offence, observed that marriage does not mean that a woman is always consenting for physical relations with her husband, PTI reported.

The court in its observation held that physical force is not necessary for constituting the offence of rape. A bench of Acting Chief Justice Gita Mittal and C Hari Shankar constituted the jury. They said that in a relationship like marriage where both man and woman have a right to say ‘no’ to physical relations.

“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. The court in its observation disagreed with the submission of the NGO Men Welfare Trust. The NGO was opposing the plea calling for making marital rape an offence.

Earlier, Kolkata-based NGO Hridaya had also opposed the plea to make marital rape an offence. They argued that consent for physical relations is for all time when a person enters the institution of marriage.

Rape – A Meaning in Transition..

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.

“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 petitions have also sought setting aside of 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 such that it 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 likewise as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands.

The court has now fixed the next date of hearing on August 8.

The Supreme court of India has refused to accept marital rape as a criminal offence in an debate held last year.


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