Marital rape: Sex employee has proper to say no, why not married girl, asks Delhi HC

Marital rape: Sex employee has proper to say no, why not married girl, asks Delhi HC


Senior advocate Raj Shekhar Rao, who’s appointed as an amicus curiae to help the courtroom, argued that husband and spouse are “two equals before the law” and there’s no cause “why husband’s desire to have sex trump the wife’s desire not to”

Representational picture. PTI

New Delhi: The Centre Thursday advised the Delhi High Court that it was contemplating a “constructive approach” to the difficulty of criminalising marital rape and has sought solutions from state governments, the Chief Justice of India, MPs and others on complete amendments to the legal legislation.

Justice Rajiv Shakdher, who’s heading the bench coping with a batch of petitions in search of criminalisation of marital rape, knowledgeable in the course of the listening to that Solicitor General Tushar Mehta talked about the matter earlier than him when sure different events and Justice C Hari Shankar, who varieties a part of the bench, weren’t current.

“The matter was mentioned in the morning by the learned SG and he was saying that the government was considering a constructive approach to the matter,” mentioned Justice Shakdher.

Central authorities lawyer Monika Arora advised the bench that the Centre was endeavor a complete process of amending the legal legislation which incorporates part 375 (rape) of the IPC.

“We have invited suggestions from all chief ministers of all state governments…the chief justice of India, Chief Justice of all high courts…judicial academies, national law universities, the Bar Council of India, Bar council of all courts and members of both houses of Parliament regarding comprehensively amending the criminal laws,” she mentioned.

The courtroom mentioned that overhaul of the legislation would take “a lot of time” and requested the central authorities to state if it was dealing particularly with the difficulty of marital rape exception.

“If vis-a-vis (section) 375 you people (Centre) have some suggestions then we will consider that. Generally, this exercise will take a lot of time,” mentioned the courtroom because it continued to listen to the petitions.

In its extra affidavit filed by the Under Secretary in Ministry of Home Affairs, the Centre asserted that it’s “already seized of the matter” and that the marital rape exception can’t be struck down solely on the occasion of the petitioners because the rules of pure justice required a “larger hearing of all stakeholders”.

The petitioners are additionally at liberty to offer their submissions/solutions to the Ministry of Home Affairs, it acknowledged.

Justice Shakdher, in the course of the course of the submissions, orally noticed that the exclusion of “certain circumstances” from the ambit of rape “because of inter-party relationship” is problematic and that the marital rape exception may very well be examined within the gentle of safety granted to intercourse employees in rape legislation.

The choose remarked that when the rape legislation grants no exemption in case of pressured intercourse with a intercourse employee who chooses to withdraw consent at a belated stage, why ought to a spouse be “less empowered”.

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“According to me, you (the amicus curiae) gave a good example of sex worker. If you were to look into circumstances, what better defence than to say that this is a person who is used to entertaining people…she should have also been in the exception…we have chosen not to do it. Our courts have gone as far as saying she can say no at any stage. Can a wife be put at a lower pedestal? Be lesser empowered in law?” he questioned.

Justice Shankar opined that the expectation of intercourse within the case of a conjugal relationship was not the identical as within the occasion of a intercourse employee.

Senior advocate Raj Shekhar Rao, who’s appointed as an amicus curiae to help the courtroom, argued that husband and spouse are “two equals before the law” and there’s no cause “why husband’s desire to have sex trump the wife’s desire not to”.

The amicus mentioned that the muse of part 375 was the shortage of consent and there was no cause to offer lessor safety towards non-consensual intercourse to a married girl.

He thus argued that the marital rape exception in legislation was arbitrary and violated article 14 and article 21 of the Constitution of India.

The amicus additionally mentioned that putting down the exception wouldn’t consequence within the creation of a brand new offence and the considerations of interference in personal marital house have been unfounded.

The bench was listening to PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, a person and a lady in search of putting down of the exception granted to husbands underneath the Indian rape legislation. Please have additionally been filed by some males’s rights organisations that are opposing the petitions in search of to quash the exception, saying there was no query of discrimination and the Parliament has retained the supply contemplating the general view of India society.

The central authorities, in its earlier affidavit filed within the case, has mentioned that marital rape can’t be made a legal offence because it may turn into a phenomenon which will destabilise the establishment of marriage and a straightforward instrument for harassing the husbands.

The Delhi authorities has advised the courtroom that marital rape was already coated as a “crime of cruelty” underneath IPC.

The petitioner NGO has challenged the constitutionality of the marital rape exception underneath part 375 IPC on the bottom that it discriminated towards married ladies who’re sexually assaulted by their husbands.

The listening to within the case will proceed on 14 January.

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