NEW DELHI: While hearing a batch of petitions seeking criminalization of marital rape in India, the Delhi High Court on Monday observed this should be punished, prima facie. “Marital rape, according to me, should be punished, prima facie. There should be no doubt about it. There can’t be a compromise as far as women’s sexual autonomy, bodily integrity, and her right to say no are concerned,” Justice C Hari Shankar said.
“We are not here on whether marital rapes should be punished, we are on the question as to whether in such situation this man should be held guilty of rape,” Justice Harishankar further said. A bench of Justice Justice Rajiv Shakdher and Justice Harishankar was hearing a petition filed by senior advocate Karuna Nundy.
Nundy, appearing for the NGOs, argued that marital rape exception created an anomaly as it was ‘under-inclusive’ and violated articles. He said that while there can be no compromise with women’s right to sexual autonomy and any act of rape has to be punished, there is a ‘qualitative difference’ between a marital and a non-marital relationship as the former entails a legal right to expect reasonable sexual relation from the spouse and it plays a part in the marital rape exemption in criminal law.
Justice Hari Shankar, who formed part of the division bench hearing a batch of petitions seeking criminalisation of marital rape, orally observed that a non-marital relation, no matter how close, and a marital relationship cannot be ‘parallelised’.
The court questioned why the exception from the offence of rape granted to a married couple had remained in the legislature for years in spite of developments suggesting the contrary and remarked that ‘one of the possible reasons was the wide scope of Section 375 of Indian Penal Code which included even a single act of ‘unwilling sex’ as rape.