The Delhi High Court observed on Thursday said that a sex worker has the right to say no to a client, and questioned how a married woman can be denied that right with respect to her husband, Bar and Bench reported.
This was after amicus curiae Rajshekhar Rao said that every other woman, including a sex worker, has the right to accuse a man of rape, but a married woman does not have this right against her husband.
“You [Rao] gave the example of sex worker,” Justice Rajiv Shakdher said. “She can say no at any stage. Can a wife be placed on a lesser pedestal?”
The High Court was hearing a group of petitions challenging the legal provision that exempts sexual intercourse by a man with his wife from the purview of rape. An exception to Section 375 of the Indian Penal Code, which defines rape, states that sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.
At Thursday’s hearing, Rao also said that the apprehension that the criminalisation of marital rape would result in a deluge of cases against husbands was unfounded. “The question is how many women still face abuse, physical and verbal, but still do not call it out?” he said.
The amicus curiae told the court that the act of marital rape inherently violates Article 21 of the Constitution, which deals with the protection of life and personal liberty, according to Live Law. He said that the current legal position is based on the archaic belief that the act of marriage presumes consent for sexual intercourse.
“Apart from being founded on an absolutely outdated and obsolete notion of the concept of marriage and the status of a wife within it, such a presumption of consent is inconsistent with applicable law,” Rao told the court.
In the previous hearing on Tuesday, advocate Nandita Rao, representing the Delhi government, told the court that the non-criminalisation of marital rape does not compel a woman to have sexual intercourse with her husband.
She had said that the option of divorce, as also other criminal provisions, remain open to the women.
The Delhi government’s lawyer had said that women in such cases register cases under Sections 377 (unnatural sexual intercourse), 498A (cruelty by husband or relatives of husband) and 326 (causing grievous hurt by using dangerous weapons) of the Indian Penal Code.
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