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Expectation of conjugal relations can’t be reason to force wife, Delhi HC told
The amicus curiae said sexual relations can be achieved only through dialogue or if a wife is also willing and ready to have conjugal relations
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Continuing her arguments before the Delhi high court on Friday for criminalising marital rape, amicus curiae Rebecca John said expectation of sexual relations by a husband cannot result in him having forcible sex with the wife.
John told the bench of justices Rajiv Shakdher and C Hari Shankar that no doubt, there was an expectation of sexual relations in a marital relationship and that is not wrong, but it can only be achieved through dialogue or if a wife is also willing and ready to have conjugal relations.
“Expectation is not wrong. Both sides can have expectations. However, that expectation cannot result in the husband having forcible sex with the wife. The issue is not about expectation; it is about the man exercising his dominant right over the wife, despite the wife saying I cannot and will not have sexual relations with you,” John said, after Shankar asked her about the expectations that a husband may have in a marital relationship.
Justice Shankar reiterated there is a qualitative difference between the sexual equation that exists between parties who are married and those who are not. He also said while the parties who are married may have a right to expect sexual relations, there is no such right between couples who are unmarried.
Posing a query to senior advocate John, Shankar said given such a right, if the legislature decided not to equate the two situations, owing to the difference within which the parties were placed, can the court examining the constitutionality of exception in the rape law -- it decriminalises marital rape -- say that there is no such difference in the situations?
Exception 2 in Section 375 of the Indian Penal Code decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 115 years of age, is not rape.
On an earlier occasion, Shankar had said that when a man is married, there is a social, moral and legal right for each partner to expect meaningful conjugal relations with the other.
Correcting his earlier stance, the judge said, “Let us not call it a right. Let’s call it an expectation.”
The bench is hearing PILs by NGOs RIT Foundation, All India Democratic Women’s Association, and two individuals seeking to strike down the exception granted to husbands in the Indian rape law.
During the proceedings, senior counsel John also submitted that if the exception in the rape law was gender neutral, it would create a false equivalence to suggest that husbands and wives are equal, disregarding the lived experiences of women as wives.
She also gave examples of various provisions in different statutes which specifically focussed on the victim being a woman, including the Domestic Violence Act, Section 498A (husband or relative of husband of a woman subjecting her to cruelty), Section 113B of Indian Evidence Act (presumption as to dowry death) and Sexual Harassment of Women at Workplace Act.
She submitted that the scheme of Indian Penal Code (IPC), Criminal Procedure Code and the Indian Evidence Act has been amended by the legislature, putting the woman at the centre of the provision and keeping in mind the procedural and evidentiary safeguards that must be given when a complaint is filed by a woman.
Clarifying that it was not her case that other sexual minorities must not be given adequate protection, John said that in order to do so, other special provisions will have to be introduced which specifically protected their rights.
The arguments will continue on Monday.
