Sexual intercourse in marital relationship cannot be labelled as rape, says Advocate Kapoor
Jan 25, 2022
New Delhi [India], January 25 : The sexual intercourse between husband and wife in a marital relationship cannot be labelled as rape but at the worst, it can be called sexual abuse only, advocate RK Kapoor said while opposing the petition demanding criminalisation of marital rape in Delhi High Court today.
Advocate RK Kapoor appearing for one of the intervenors in the matter opposed the petition demanding criminalisation of marital rape and also said that comparing marriage relationships with sex-worker and customers is wrong.
Advocate Kapoor submitted a bench of justices Rajiv Shakdher and C Hari Shankar, which is dealing with various petitions on the issue of criminalisation of marital rape.
He said that sexual intercourse between husband and wife in the marital relationship cannot be labelled as rape and at the worst, it can be called sexual abuse only, which would be clear from the definition of cruelty as defined under the Domestic Violence Act 2005.
"This is why exception 2 has been retained and Parliament has covered such an act of sexual abuse under Cruelty, and has taken it out of the purview of Rape as defined under Section 375 IPC, and exempted Husband from the severity of Section 376 IPC, " Kapoor submitted before the bench.
The Parliament does not say that such an act is not sexual abuse but has taken it on a different plane to save the institution of marriage and the wife cannot compel the Parliament to prescribe a particular punishment against the husband to satisfy her ego, advocate Kapoor argued, pointing out sufficient provisions in favour of the wife, which she can take.
Countering the submission made in favour of the marital rape, Kapoor said that "it cannot be said that Parliament has legalised the act of sexual abuse by the Husband."
Citing provisions under the Hindu Marriage Act, he said that an endeavour has been made to protect the institution of marriage and said the institution of marriage is important not only for the couple but for the family which includes children and parents also.
Expressing his disagreement with the comparison with sex workers, Kapoor submitted that marital relationship is distinct from the relationship between sex worker and the stranger and can not be compared with the marital life.
"There is no emotional relationship between sex worker and the stranger. The relationship between husband and wife is a package of a large number of mutual rights and obligations which are social, psychological, religious, economic etc.." he submitted.
Adding further, he said that it cannot be limited to just one event of consent for a sexual relationship as there are major rights and obligations under the family system which comprise children born out of wedlock, parents, parents-in-law etc.
Amicus Curiae Rajshekhar Rao had argued that even a sex worker is entitled to decline the consent and power to prosecute men of rape but a married woman is not entitled to do so.
"A totally different concept than the stray relation between a sex worker and a stranger. Such a comparison would rather be an insult to the Institution of Marriage, " he said.
He further submitted that in this case of adverse possession, it was not that there was
legislative vacuum, and therefore, the Supreme Court did not strike down the clause relating to the law of limitation on adverse possession but rather left it to the wisdom of the
Parliament to enact appropriate legislation, " Kapoor submitted.
The court, which was hearing a batch of petitions including the NGOs RIT Foundation and All India Democratic Women's Association who have challenged an exception to section 375 to the Indian Penal Code, will continue hearing on the matter on January 27.
The exception to Section 375 of the Indian Penal Code, says sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
