Marriage does not mean wife ready for sex, says Delhi HC on marital rape

Marriage does not mean that a wife has to have a physical relation with husband, the Delhi High Court said on Tuesday, while holding that rape by a husband has to be accompanied by force is a “myth” and physical force is not necessary for constituting the offence of rape.

A bench of acting Chief Justice Gita Mittal and C Hari Shankar said that both the man and woman have a right to say no to a physical relationship under a marriage. The court’s observation came while hearing pleas asking to make marital rape an offence.

"Marriage does not mean that the woman is all time ready, willing and consenting. The man will have to prove that she was a consenting party," the bench said.

The court added that the use of force or threat of force is an important component to constitute rape.

"It is incorrect to say that 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.

Amit Lakhani and Ritwik Bisaria, representative of an NGO, argued that women already have protection from sexual violence in a marriage under the present laws, including Prevention of Women from Domestic Violence Act, harassment to married woman, sexual intercourse with wife without her consent while she is staying separately and unnatural sex.

Replying to this, the court stated, if it was already covered under different laws then why there should be exception in Section 275 of the Indian Penal Code (IPC), which clearly says that 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.

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 constitutionality of Section 375 of the IPC on the ground that it discriminated against married woman being sexual harassed by their husbands.

The argument will continue on August 8, the next date of hearing.