Marital rape needs to become an offence, Delhi HC told

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RIT Foundation and All India Democratic Women’s Association, which have petitioned Delhi High Court for the criminalisation of marital rape, on Monday contended that such an act will continue to remain condoned until it is explicitly declared an offence under the law.

“Not only do consequences to a specifically labelled offence deter it, they elevate the consciousness of those who understand where the boundaries are. In our case, to where the conjugal rights to sex begins and where it ends: the bodily integrity of wives,” argued advocate Karuna Nundy before the division bench of Justices Rajiv Shakdher and C Hari Shankar.

The court has been hearing the petitions challenging the Exception 2 in IPC Section 375 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under Section 376 IPC.

Nundy submitted that many well-meaning men might have thought of sexual harassment as a compliment at the workplace before the Vishaka judgment.

The case before the court is about the moral right of a married woman to refuse unwanted forcible sexual intercourse and it is about respecting the right of a wife to say no and recognising that marriage is no longer a universal licence to ignore consent, the petitioners argued before the court.

The arguments will continue on Tuesday. The court has asked Nundy to address the question on the creation of an offence by the court. Opposing the petitions, the intervenors have argued that striking down the exception will amount to the creation of a new offence.

“Even if it is the creation of a new offence, then what? Is the court going to stop short and say it creates a new offence and, therefore, we will not touch because it is the legislature’s [job]. That is the other issue you need to answer,” Justice Shakdher told Nundy.

Meanwhile, the court once again asked the Centre to be ready with arguments and clarify regarding its previous stand.

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