Married partners can say “no” to physical relations, observes Delhi High Court

By Prarthana Mitra

In a historic statement, the Delhi High Court clarified that marriage does not entail a natural lease of life-long consent to have sex or demand it from your partner. The court ruled that in a relationship like marriage, both men and women have a right to say ‘no’ to physical relations, further stressing that being married does not mean the wife is always ready for sex.

Expanding the scope of rape to non-consensual sex within marriage, the bench further deemed it unnecessary to look for physical injuries and force when a victim accuses their spouse of rape.

Here’s what happened

Hearing petitions to criminalise marital rape, the High Court bench comprising Acting Chief Justice Gita Mittal and C Hari Shankar, observed, ”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.”

NGO RIT Foundation and the All India Democratic Women’s Association challenged the constitutionality of Section 375 on the grounds that it failed to adequately protect married women from being sexually assaulted by their partners.

Reflecting that the definition of rape is completely different today, the bench disagreed with the submission of NGO Men Welfare Trust, which opposed the plea to make marital rape an offence. It also disagreed with the intervenors, asserting that physical force or threats to the physical being is no longer necessary to constitute the offence.

When the NGO’s representatives Amit Lakhani and Ritwik Bisaria argued that a wife is already protected from marital sexual violence under Prevention of Women from Domestic Violence Act, harassment to married woman, sexual intercourse with wife without her consent while she is living separately and unnatural sex laws, the court replied that, in that case, Section 375 of the IPC should not be an exception.

Raising a fair point regarding the monopolising financial power that husbands still hold in many Indian households, the court said, “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, [if] she filed a rape case against the husband, what will happen?”

Why you should care

However, striking down the protection that Section 375 offered to men would lead to the creation of a new offence, which does not fall within the court’s purview but is a matter of legislation.

According to PTI, the arguments remained inconclusive and will be taken up next on August 8.

If marital rape is deemed a criminal offence by the end of this hearing, we may be surging ahead of many “progressive” countries in the Occident, where lawmakers continue to turn a blind eye to sexual violence against women in marriage. It will also be a beacon of hope for women in our country, which was recently dubbed unsafest for women.

While naysayers will continue to defend and cite the sanctity of the institution of marriage, it is time India replaced an anachronistic view of conjugal relationships, with one that consolidates the relationship in mutual respect and consent.

Prarthana Mitra is a staff writer at Qrius

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