If woman says no, it is offence; relationship cannot put it on different pedestal: Delhi HC on marital rape
Jan 11, 2022
New Delhi [India], January 11 : The Delhi High Court on Tuesday questioned how the dignity of a married woman is not affected as an unmarried woman when the man imposes himself on her and remarked that relationship cannot put it on a different pedestal as a woman remains a woman.
The observation came when a Division Bench of Justice Rajiv Shakdher and C Hari Shankar was hearing the petitions relating to the criminalization of marital rape.
Justices Rajiv Shakdher asked Delhi Government Counsel Nandita Rao why does it affect an unmarried woman's dignity but does not affect a married woman's dignity.
Justices Shakdher's question came when the was court was informed by Delhi Government counsel that married women can seek remedy under section 498 A of IPC. Delhi Government counsel also apprised the court that as of today, FIRs are registered by the spouses under sections 377, 498A and 326 of IPC.
The court asked why a man forcing himself on a woman without her consent affects the dignity of an unmarried woman but does not affect the dignity of a married woman.
Justice Rajiv Shakdher also remarked that Section 375 of India Penal Code dealt with the situation that the offence has taken place and the exception creates firewall "Is that firewall is justifiable on the test of Article 14 and 21, it is only that particular narrow aspect that we have a look into," the court said.
Justice Rajiv Shakdher further added that the only reason the accused is not visited by the penal provision is because of the exception, so the core issue, therefore, is would it stand Article 14 and 21.
The court also put an example saying that imagine a woman is having a menstrual cycle, husband says he wants to have sex and brutalizes her. Delhi Government counsel replied that
then it is an offence but not under Section 375 of IPC.
Justice Rajiv Shakdher remarked that when a girlfriend or live-in partner says no, it is an offence. "The relationship cannot put it on a different pedestal. A woman remains a woman," Justice Shakdher said.
The court will continue hearing the matter on Wednesday relating to the criminalization of marital rape. The petitioners include NGOs RIT Foundation and All India Democratic Women's Association who have challenged an exception to Section 375 and of the Indian Penal Code.
