NEW DELHI: The Delhi High Court on Tuesday wondered how the dignity of a married and unmarried women can be differentiated and asserted that irrespective of marital status, every woman has the right to say ‘no’ to a non-consensual sexual act.
The high court said the rationale and the thrust is that a relationship cannot be put on different pedestal as a woman remains a woman. “Just because she is married, she can take recourse of other civil and criminal laws and not under IPC section 375 (rape), if she is a victim of forcible sexual intercourse by her husband, is not alright,” it said.
The bench, while hearing a batch of petitions seeking criminalisation of marital rape, also asked, “Just because she is married, does she lose her right to say ‘no’?” A bench of justices Rajiv Shakdher and C Hari Shankar said the exception from prosecution given to husbands under section 375 of the IPC has created a firewall and the court has to see if the firewall is violative of Articles 14 (equality before law) and 21 (protection of life and personal liberty) of the Constitution.
The bench said, “Is the firewall justifiable on the test of Articles 14 and 21? It is only that narrow aspect that we have to look into. To say that the wife can go and seek divorce if the husband imposes himself on her is not the issue here.” The IPC section exempts sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age.