FPJ Legal: Will exception to rape law be unconstitutional if it's gender-neutral, asks Delhi HC

New Delhi: While hearing a batch of petitions seeking criminalisation of marital rape, Justice C Hari Shankar of the Delhi High Court said on Thursday, “Even in a marriage, howsoever elevated the expectation of sexual relationship, you cannot claim the right to have sexual intercourse with a partner.”

To this, amicus curiae Rebecca John, who is assisting the court, added, “There is a fair expectation of sexual relationship in a marriage. Expectation cannot be penalised. The spouse has a right to resort to civil remedies. But if the expectation becomes a physical act based on coercion and force, then that sexual act must become an offence.”

“Not every man in a marital relationship is sought to be punished. Not every act in a relationship is sought to be punished. What is sought to be brought under the purview [of law] is the act of sexual relationship with wife against her consent,” she said, reports India Today’s news portal.

PTI ADDS: The court was deliberating upon the challenge raised to the exception under the rape law that protects a husband from prosecution for a non-consensual sexual act with his wife and asked whether the same could be unconstitutional if the law was gender-neutral.

Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.

"Suppose section 375 (definition of rape) of the IPC was gender-neutral. According to you will the exception be unconstitutional even then?" Justice C Hari Shankar asked the amicus curiae.

To this, senior advocate Rebecca John said she will endeavour to answer it on Friday. "Let me nuance it. I will try to answer both questions one way or the other. I will come back to answer these questions tomorrow," John said.

She added that if the exception goes, all that the court is doing is, one, upholding bodily integrity of woman; two, giving fair play to the definition and, three, putting people to notice that this is no longer part of prohibition and no longer gives you immunity.

"Therefore, a marital partner's 'no' must be respected. We are not talking about trivial cases. Rape by itself is a serious offence," she said.

Another amicus curiae and senior advocate Rajshekhar Rao had earlier told the court that apprehensions of misuse and protection of the institution of marriage cannot be a ground to sustain the marital rape exception in the Indian Penal Code (IPC).

He had said that there was always a possibility of misuse of criminal offences and had the object of the legislation been to protect the institution of marriage, wives would not have been given the power to prosecute husbands for any offence including lessor sexual offences.

On January 17, the court had asked the Centre to clarify its in-principle position on the issue of criminalising marital rape after the government sought time to formulate and place its "considered stand".

The Centre, on January 13, had told the high court that it was considering a "constructive approach" to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.

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