Delhi HC on Marital Rape: Marriage doesn’t mean wife always ready for sex

Delhi High Court on Tuesday observed that marriage doesn’t mean that wife is always ready for sex. The court was hearing a plea on marital rape seeking to make it an offence and others opposing it. The court further said that it is not necessary for a woman to have a physical relationship with her husband whenever he wants, while holding that physical force is not necessary for constituting the offence of rape.

A bench of acting Chief Justice Gita Mittal and C Hari Shankar said that in a marital relationship, both the man and the woman have a right to say no to a physical relationship. The bench said, “Marriage does not mean that the woman is all time ready, willing and consenting. The man will have to prove that she was a consenting party.”

The court did not agree with the submission of Men Welfare Trust, which opposed the plea to make marital rape an offence, that in spousal sexual violence, the use of force or threat of force is important elements to constitute rape. It said, “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.”

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However, NGO’s representatives, Amit Lakhani and Ritwik Bisaria, argued “A woman already has protection from sexual violence in a marriage under the available laws, including Prevention of Women from Domestic Violence Act, harassment to a married woman, sexual intercourse with the wife without her consent while she is living separately and unnatural sex”.

The court said, if it was already covered under the other laws, why should there be an exception in Section 375 of the Indian Penal Code, which says intercourse or a sexual act by a man with his wife is not rape. “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.

Non-profit groups RIT Foundation and All-India Democratic Women’s Association challenged the constitutionality of section 375 (which defines rape) of the Indian Penal Code on the ground that it discriminated against married women being sexually assaulted by their husbands. The Men Welfare Trust is opposing this petition. The arguments remained inconclusive and will continue on August 8, the next date of hearing.