HC marital rape hearing: Role of husband’s expectations in focus

Exception 2 in Section 375 of the Indian Penal Code (IPC) decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.
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.(File Photo)
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.(File Photo)
Published on Jan 22, 2022 03:37 AM IST
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Continuing her arguments before the Delhi high court on Friday for criminalising marital rape, amicus curiae Rebecca John said the 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 while there is no doubt that there was an expectation of sexual relations in a marital relationship, consent can only be achieved through dialogue, and if the 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 that there is a qualitative difference between the sexual equation that exists between parties who are married and those who are not. He 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.

Exception 2 in Section 375 of the Indian Penal Code (IPC) decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

Justice Shankar asked John that if the country’s legislature considered as different the situations of a married and unmarried couple, was it possible for the court to do otherwise.

Earlier, Shankar said 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.

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 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.

Arguments will continue on Monday.

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