The Delhi High Court has observed that there is no question of penalising marital rape but the question is whether the exception provided in Section 375 of the Indian Penal Code is unconstitutional.
The bench of Justice Rajiv Shakdher and Justice C. Hari Shankar observed that there is a qualitative difference between a married and an unmarried couple, as there is an exemption to marital rape in criminal law. The man gets a legal right through marriage to expect sexual relations from his wife, the bench observed.
Justice Hari Shankar observed a woman’s right to sexual autonomy with the right to say no cannot be compromised.
On sexual relations between unmarried couples, Justice Shankar observed that howsoever close the relationship may be, the law does not recognize any right to accept sexual congress. Hence, any of the partners can say that he/she will not have sex with the other.
However, when it comes to marital rape, the question is whether in such a situation the man should be held guilty of rape under different sections of the IPC. He said till now, a lot of arguments have been made on the legal position in the United States and United Kingdom, but would have little bearing on the case since there is a Constitution and principles unique to India.
Justice Shankar clarified that this is his own view and not the opinion of the bench. The court said this in relation to the bunch of petitions by RIT Foundation and the All India Democratic Women’s Association (AIDWA) seeking criminalization of marital rape in India. Advocate Karuna Nundy represented the petitioners.
RIT Foundation and AIDWA have pleaded that the exception for marital rape under Section 375 of the Indian Penal Code violates the Constitution-given rights to women of dignity, personal and sexual autonomy and self-expression.