Just Because She Is Married, Does She Lose Her Right To Say ‘No’? Asks Delhi HC

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The Delhi High court recently debated whether protection to husband in marital rape should be granted. And irrespective of their marital status do women have the right to say no to non-consensual acts of sex.

The lawyer argued that as long as section 375 is upheld women will be denied the right to call a rape a rape. Amicus curiae senior advocate Rajshekhar Rao argued that the law in the current form allows a husband to violate his partner’s rights. A division bench of Justices Rajiv Shakdher and C Hari Shankar was hearing the case.

Rao said, “Five minutes before the marriage if the act occurs, it is an offence and five minutes after the marriage if the act occurs, it is not an offence. At the end of the day, the woman does not have recourse to prosecute the man for the act. She has the ability to prosecute him for that act under various other provisions of law but she cannot call it a rape anymore.”

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While listening to the petitions seeking criminalisation of marital rape the bench asked, “The bench, while hearing a batch of petitions seeking criminalisation of marital rape, also asked, “Just because she is married, does she lose her right to say ‘no’?”

Protection to husband in marital rape

The bench felt exceptions given to husbands under section 375 of the Indian Penal Code (IPC) creates a firewall. It is the court that has to see if this is violative of Articles 14 (equality before law) and 21 (protection of life and personal liberty) of the Constitution. The bench further opined “Is the firewall justifiable on the test of Articles 14 and 21? It is only that narrow aspect that we have to look into. To say that the wife can go and seek divorce if the husband imposes himself on her is not the issue here.”

On the other hand government’s counsel, Nandita Rao said “The exception to section 375 does not violate the admitted right to privacy, dignity or the right to refuse sex in or out of marriage because there is no compulsion on a woman and she is not remediless.”

The petitioner in this case is an NGO that has challenged the constitutionality of section 375 IPC. The petition argues that it discriminates against married women being sexually assaulted by their husbands.