Marriage Doesn’t Mean Wife Always Ready For Sex, Says Delhi High Court on Marital Rape

The court will continue hearing on August 8.

New Delhi, Jul 17: Hearing pleas seeking to make marital rape an offence and others opposing it, the Delhi High Court on Tuesday observed that marriage does not mean that a woman is always consenting for physical relations with her husband. The court also observed that physical force is not necessary for constituting the offence of rape.  The court has fixed next date of hearing on August 8.

A bench of Acting Chief Justice Gita Mittal and C Hari Shankar said that in a relationship like marriage, both man and woman have a right to say ‘no’ to physical relations. “Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party,” the bench observed. The court disagreed with the submission of the NGO Men Welfare Trust which was opposing the plea calling for making marital rape an offence.

It is incorrect to say that (physical) force is necessary for rape. It is not necessary to look for injuries in a rape. Today, the definition of rape is completely different,” the court said.

The NGO’s representatives Amit Lakhani and Ritwik Bisaria argued that a wife already has protection from sexual violence in a marriage under the available laws, including Prevention of Women from Domestic Violence Act, harassment to a married woman, sexual intercourse with the wife without her consent while she is living separately and unnatural sex. To this, the court said, if it was already covered under the other laws, why should there be an exception in Section 375 of the IPC, which says intercourse or a sexual act by a man with his wife is not rape.

“Force is not a pre condition of rape. 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 said.

Men Welfare Trust was opposing the petitions filed by NGO RIT Foundation and the All India Democratic Women’s Association, which have challenged the constitutionality of Section 375 (which defines rape) of the IPC on the ground that it discriminated against married women being sexually assaulted by their husbands.

(With PTI inputs)