The Delhi high court on Tuesday observed that marriage did not mean that a woman always consents to physical relations with her husband.
The court also held that physical force is not necessary for constituting the offence of rape. A bench of Acting Chief Justice Gita Mittal and C Hari Shankar said in a relationship like marriage, both man and woman have a right to say ‘no’ to physical relations.
According to news agency PTI‘s report, the court’s observation came while hearing pleas seeking to make marital rape an offence and others opposing it.
“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 news agency quoted the bench’s observation.
It did not agree with the submission of NGO Men Welfare Trust, which is opposing the plea to make marital rape an offence, that in spousal sexual violence, the use of force or threat of force are important elements to constitute the 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 news agency quoted the court.
The NGO’s representatives argued that a wife already has protection from sexual violence in a marriage under the available law harassment to married woman, sexual intercourse with 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 exception in Section 375 of the IPC, which says intercourse by a man with his wife is not rape.
Meanwhile, in a shocking development last week, a barber, suffering from mouth cancer, killed his wife after she allegedly refused to have sex with him.