Marital rape is the biggest form of sexual violence against women, the Delhi high court was told on Friday, and that an argument in favor of a wife’s assumed consent was untenable.
The court was hearing a batch of petitions seeking criminalisation of marital rape.
The court was hearing PILs by NGOs RIT Foundation, All India Democratic Women’s Association and two individuals who have sought striking down the exception in the law arguing that it discriminated against married women who were sexually assaulted by their husbands.
“Marital rape is the biggest form of sexual violence which happens in the confines of our homes. How many times does rape take place in the institution of marriage and is never reported? This figure is not reported or analysed,” said senior advocate Colin Gonsalves, who contended that neither the families nor the police authorities come to the help of survivors of marital rape.
On Monday, the Delhi high court in a bench led by Justice C Hari Shankar observed that even though there can be no compromise on the bodily autonomy of a woman, marital rape cannot be treated as a prosecutable offence because of the qualitative difference between a marital and non-marital relationship. “In a marital relationship, there is a qualitative difference. There is an expectation of a conjugal relationship between both parties. When a party gets married, a person has an expectation and to a certain extent, the legal right also to express a normal sexual relationship with your partner. Because if it is denied, it can lead to civil consequences and can also lead to divorce,” Justice C Hari Shankar said.
He added that qualitative difference has a part to play in the exception that has been added to the Section 375 of IPC.
Resuming the hearing of petitions relating to the criminalization of marital rape the Division Bench of Justice Rajiv Shakdher and C Hari Shankar questioned how the dignity of a married woman is not affected as an unmarried woman when the man imposes himself on her and remarked that relationship cannot put it on a different pedestal as a woman remains a woman.
"The relationship cannot put it on a different pedestal. A woman remains a woman," Justice Shakdher said.
The court will continue hearing the matter on 12th January, Wednesday relating to the criminalization of marital rape.