Marital Rape

Marriage does not oblige a woman to have sex with her husband, says Delhi High Court

The court also said that physical force is not necessary to constitute the offence of rape.

The Delhi High Court said on Tuesday said that marriage does not mean a woman is obliged to have a physical relationship with her husband. The court also said that physical force is not necessary to constitute the offence of rape, PTI reported.

“Marriage does not mean that the woman is all time ready, willing and consenting [for sex],” a bench of Acting Chief Justice Gita Mittal and C Hari Shankar said. “The man will have to prove that she was a consenting party.” The court said that in a marriage, both the woman and the man have the right to refuse to have a physical relationship.

The court was hearing pleas for and against making marital rape an offence.

“It is incorrect to say that force is necessary for rape,” the bench observed, disagreeing with the submission of non-profit organisation Men Welfare Trust, which opposed the plea to make marital rape an offence. “If a man puts his wife under financial constraint and says he will not give her money for household and kids expenses, unless she indulges in sex with him and she has to do it under this threat. Later, she filed a rape case against the husband, what will happen?” The court added that the definition of rape today is “completely different”.

Amit Lakhani and Ritwik Bisaria, the NGO’s representatives, argued that the Protection of Women from Domestic Violence Act, as well as other laws, already protect married women from sexual violence. However, the court then questioned the need for an exception under Section 375 of the Indian Penal Code, which says that sexual intercourse by a man with his own wife, who is above 15 years of age, is not rape.

The Men Welfare Trust is opposing petitions filed by the non-profit groups RIT Foundation and the All-India Democratic Women’s Association, which have challenged the constitutional validity of Section 375 of the Indian Penal Code. The section exempts a man from a rape charge if the woman he has forced sexual intercourse with is his wife.

The hearing will resume on August 8.

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