'Husband Forcing Wife To Sex Is Not The Same As Getting Raped By Stranger,' What Delhi HC Said

The Delhi High Court on Wednesday, in a split verdict, refused to criminalise marital sex and gave the option to the petitioner to approach the Supreme Court.

Among the two judges, Justice Rajiv Shakdher ruled in favour of striking down the marital rape exception (exception 2 to Section 375 of the Indian Penal Code), held that sexual assault by the husband on his wife which falls within the fold of sec. 375 of the Indian Penal Code needs to be called out as rape.

However, Justice C Hari Shankar refused to strike down the exception.

In his 200-page verdict, Justice Shankar said that introducing the possibility of a husband being regarded as his spouse's rapist will be completely antithetical to the institution of marriage which is the most pristine institution of mankind, and on which rests the entire bedrock of society.

Justice Shankar said that in this relationship of marriage, which has a unique character and complexity, the legislature has advisedly felt that allegation of “rape” has no place and "a legislation that seeks to keep out, from the parameters of such a relationship, any allegation of rape, in my view, is completely immune to interference".

"There is no inherent fundamental right, in the wife, to have her husband convicted for rape, relatable to Article 21, Article 19, or to any other Article in the Constitution," he said.

It is wrong, but..

A husband forcing his wife to have sex with him, despite her unwillingness is wrong, the judge said.

However, when a woman decides to marry a man, she consciously and willingly enters into a relation in which sex is an integral part and the woman gives her husband the right to expect meaningful conjugal relations, Justice Shankar opined.

"If, therefore, the man, in such a situation, requests her, on a particular occasion to have sex, he is exercising a right that vests in him by marriage, and requests his wife to discharge an obligation which, too, devolves on her by marriage," the judgment said.

Thus, the same cannot be equated with that of rape by a stranger, it was held.

“If the wife refuses, and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger. Nor can the impact on the wife, in such a situation, be equated with the impact of a woman who is raped by a stranger,” the judgment said further.