Assumption That Wife Forced To Have Sex With Husband Feels Same Degree Of Outrage As Woman Raped By Stranger Is Unrealistic : Justice Hari Shankar

Delivering a split verdict in pleas seeking criminalisation of marital rape, Justice C Hari Shankar of Delhi High Court, who upheld the constitutional validity of marital rape exception (exception 2 to Section 375 of the Indian Penal Code), held that there is no inherent fundamental right in the wife to have her husband convicted for rape, relatable to Article 21, 19 or any other Article in the Constitution.Justice Shankar added that the marital rape exception thus merely disapproves the use of the "rape" vocabulary in the context of marital sexual relations and that the wife has other alternative civil and criminal remedies to invoke in such situations. While saying there can be no compromise on sexual autonomy of women or the right of a woman to sexual and reproductive choice, Justice C Hari Shankar did not accept the argument that in treating sexual acts between a husband and wife, whether consensual or non-consensual, differently from non-consensual sexual acts between a man and woman not bound to each other by marriage, the legislature acted unconstitutionally. "The distinction in my view, is founded on an intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception, which fulfils not only a legal but also a laudatory object, and does not compromise any fundamental rights guaranteed by Part III of the Constitution," the Judge added.The impugned Exception, far from being unconstitutional, serves a laudatory purpose, and is in pre-eminent public interest, aimed at preservation of the marital institution, on which the entire bedrock of society rests.The 'institution of marriage', and the intelligible differentia that resultsEmphasizing on the institution of marriage, the Judge was of the view that the relationship between husband and wife, which emerges as a result of the tying of the proverbial matrimonial knot is, however, distinct from each and all of these relationships. "To ignore, or even to seek to undermine, this, is to ignore plain reality. Equally plain, and real, is the fact that the primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex," Justice Shankar said. He added "Between a husband and wife, who spend their days and nights together, living in a house which, by the dint of their joint effort, they make a home, there exists a bond which defies, and indeed transcends, all known and identifiable parameters. In our country, marital vows are still regarded as inviolable, and marital fidelity is, fortunately, still the norm, profligacy being the exception (even if adultery is no longer a criminal offence). The sexual aspect is but one of the many facets of the relationship between husband and wife, on which the bedrock of their marriage rests."Observing that sex between a wife and a husband is sacred, Justice Shankar said that in no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the "gross senses". He added that the emotional element of the act of sex, when performed between and wife and husband, is undeniable and that the marital bedroom is inviolable. "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", Justice Shankar added. Thus, while opining that marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined, the Judge said that the marital rape Exception does not wither expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent. "All that it says is that sexual intercourse and sexual acts – which one may, for the purposes of convenience, refer to, generally, as "sex" – by a husband with his wife, is not rape. By extrapolation, it may be inferred that the impugned Exception also excepts, from the scope of "rape", a situation in which the wife is not willing or does not consent. Any further extrapolation, to imply that the provision encourages, or even sanctions or permits, non-consensual sex by a husband with his wife would, in my opinion, would be completely unwarranted," the Judge added.Husband has legitimate expectation of sex from wife in marriageFurther observing that the expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, Justice Shankar said that unjustified denial of sexual access, by either spouse to the other, is not, therefore, sanctified or even condoned by law. He said that it may not invite criminal action; it, nonetheless, entitles the spouse, to whom sexual access has been unjustifiably denied, to seek a separation by way of divorce.Assumption that wife forced to have sex with husband feels same degree of outrage...

Assumption That Wife Forced To Have Sex With Husband Feels Same Degree Of Outrage As Woman Raped By Stranger Is Unrealistic : Justice Hari Shankar

Nupur Thapliyal

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