Removing the exception in the rape law that exempts forceful sexual intercourse by a man with his wife, will uphold the bodily integrity of women, Senior Advocate Rebecca John submitted to the Delhi High Court on Thursday, Live Law reported.
The Delhi High Court has been hearing on a daily basis, a batch of petitions seeking to quash the exemption for married men. Exception 2 to Section 375 of the Indian Penal Code, which defines rape, states that forcible sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.
John is one of the amici curiae – friends of the court – who have been appointed to assist the court with the matter.
“If the exemption goes, all that the court is doing is upholding the bodily integrity of a woman and putting people to notice,” she told the court on Thursday, according to Bar and Bench. “...A refusal, non-consent and a no of your marital partner must be respected, and that is the reason why this requires a serious judicial intervention.”
She also argued that sexual intercourse by a husband should be viewed as an “instrument of oppression” against his wife. In defence of her argument, the lawyer cited the 2017 judgement, in which the Supreme Court had held that privacy was a citizen’s fundamental right. John said that sexual intercourse should be viewed in the light of this judgement.
John espoused that if sexual or conjugal expectations are not met in a married relationship, there are remedies under civil laws to resolve the matter. However, if the expectation is related to a physical act based on coercion, it must be made an offence, John argued.
“Can a court permit a husband who suffers from say venereal disease to have sexual relations with his wife without her consent?” the lawyer asked the judges. “Can the husband still claim the exception? Assume the wife is suffering from ill-health and that doesn’t permit her to engage in sexual relations or might have detrimental effect to her health. Can it still be said that it is not rape?”
At Thursday’s hearing, Justice C Hari Shankar, one of the judges hearing the matter, also observed that a married man “cannot claim the right to have sexual intercourse with a partner” even if the expectation of having a sexual relationship is taken into account, India Today reported.
The Delhi High Court bench which also includes Justice Rajiv Shakdher, asked John whether the exception to the definition of rape would be unconstitutional even if the rape law was supposedly gender-neutral.
John said she would answer the question at Friday’s hearing.
Arguments made at previous hearings
The Delhi government, which is also a party to the petitions, had submitted to the court on January 12, that the non-criminalisation of marital rape does not compel a woman to have sexual intercourse with her husband.
Meanwhile, on January 13, the Centre had told the High Court that it was considering a “constructive approach” to the matter and has sought suggestions from several stakeholders and authorities on amendments to the law.
At an earlier hearing, Justice Shakdher had said that the nature of a married relationship cannot place it on a different pedestal. At another hearing on January 14, the court observed 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.
Another amicus curiae, Senior Advocate Rajshekhar Rao had told the court that marital rape inherently violated Article 21 of the Constitution, which guarantees protection of life and personal liberty of every citizen.
Even as marital rape has not been criminalised yet, multiple courts have in the past passed verdicts to protect the rights of women.
On August 6, the Kerala High Court held that marital rape was a valid reason to seek divorce. In November 2017, the Gujarat High Court had said that marital rape is a “disgraceful offence” and not criminalising it has made “a large population of women” suffer.
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