‘Marital rape exception takes away woman’s right to say no’

Will put husbands out of the ambit of rape, Delhi HC told

The Delhi High Court was told on Wednesday that retaining the marital rape exception will nullify the object behind rape law as it takes away the right of a married woman to say no.

Counsel appearing for petitioners NGOs RIT Foundation and All India Democratic Women’s Association argued that the exception, which is rooted in fiction, takes away a class of humans i.e. husbands of adult wives out of the ambit of the offence of rape, and the same cannot be permitted.

Lawyer Karuna Nundy, appearing for the petitioner NGOs, contended that the marital rape exception placed “privacy of marriage as object above privacy of an individual within the marriage” which violates several fundamental rights guaranteed to a married woman including Articles 15 and 19(1)(a) of the Constitution.

“Exception curtails a woman’s freedom to sexual expression. A woman is not allowed to say whether or not she wants to have sex with her husband. Not only does it not recognise the right of a married woman to say no, it takes away her ability to say a joyful yes. A wife’s consent and desire are reduced to a nullity,” the lawyer stated.

A Bench of Justices Rajiv Shakdher and C. Hari Shankar was hearing petitions to strike down the exemption from prosecution for the offence of rape granted to husbands under the IPC.

Ms. Nundy contended that striking down the exception would not create a new offence but only create a new class of offenders. The existence of a high mandatory minimum cannot be reason for the court to not strike down an act that is unconstitutional.

Senior advocates Rebecca John and Rajshekhar Rao, who are amicus curiae in the matter, have contended that the exception is unconstitutional and ought to be struck down. Hearing will continue on February 3.

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