New Delhi: In a significant judgement and a departure from the past position, Delhi high court has ruled that marriage is not a permanent consent for sex and the wives have the right to deny it. Experts feel the observation are bound to have far reaching consequences for Indian society.
The observation of the Delhi High Court on Tuesday also strives to define marital rape by saying that rape is not always by physical force only suggesting that sex against the will of the wife could also be termed as rape.
The observation was made by two member bench consisting of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar. The bench unequivocally said that in a relationship like marriage, both man and woman have a right to say ‘no’ to physical relations. The court’s observation came while hearing pleas seeking to make marital rape an offence.
“Marriage does not mean that the woman is all the time ready, willing and consenting. The man will have to prove that she was a consenting party,” the court said. 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. Rape could also constitute forcing someone to have sex through blackmail or by threatening financial constraints, it added. The court will continue to hear the matter next month.
“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 further explained. Meanwhile, the government has opposed the main petitions saying marital rape cannot be made a criminal offence as it could become a phenomenon which may ‘destabilise’ the institution of marriage.
Legal experts feel the judgement when it is finally laid down is slated to have far reaching impact in the society. Interestingly, National Health and Family Survey (NFHS-4), show that 5.4% of women have experienced marital rape in the country. An earlier judgement of the Supreme Court has also declined to recognise marital rape as a crime.