Marital Rape - Expectation Of Sexual Relations Cannot Lead To Husband Having Forcible Sex With Wife: Rebecca John To Delhi High Court

The Delhi High Court on Friday continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

Senior Advocate Rebecca John appearing as amicus curiae in the matter told a bench of Justice Rajiv Shakdher and Justice C Hari Shankar that expectation of sexual relations in a marriage cannot lead to a husband having forcible sex with his wife.

Adding that both the parties in a marriage may have expectations of conjugal relations, however, John argued that such expectation cannot result in the husband having forcible sex with wife.

"This is not about expectation. This is about the man exercising his dominant right over his wife despite the wife saying I cannot and will not do it with you," John argued.

This came after Justice C Hari Shankar said that there is a qualitative difference between sexual equation which exists between parties who are married and the ones which are not married.

He said that while the parties who are married may have a right to expect sexual relations, there is no such right with the parties who are not married.

In this context, Justice Shankar added that given such a right, if the legislature decided not to equate the two situations owing to the difference within which parties were placed, can the Court examining the constitutionality of exception 2 say that there is no such difference in the situations.

"Let us not call it a right. Let's call it an expectation," Justice Shankar said at the outset.

To this, John responded "Expectation is not wrong. Both sides can have expectation. However, the expectation  cannot result in the husband having forcible sex with wife."

John also answered the questions put forth by the Bench during the previous course of hearings. Answering one such question as to what would be the state of the impugned exception if Section 375 of the Code was a gender neutral provision, John submitted thus:

"….I would like to suggest that gender-neutral exception would create a false equivalence to suggest that in reality husbands and wives are equal, disregarding the lived experiences of women as wives."

John further gave example of various provisions in different statutes which specifically focussed on the victim being a female including the Domestic Violence Act, sec. 498 A and 302B of Indian Penal Code, Sec. 113B of Indian Evidence Act and Sexual Harassment of Women at Workplace Act.

She submitted that the scheme of IPC, CrPC and Indian Evidence Act has been amended by the legislature putting the woman in the centre of the provision, keeping in mind the procedural and evidentiary safeguards that must be given when a complaint is filed by her.

Clarifying that it was not her case that other sexual minorities must not be given adequate protection, John said that in order to do so, other special provisions will have to be introduced which specifically protected their rights.

"I argue that by not recognising that inequality actually exists within a marriage, for a large majority of Indian women, and making exception gender neutral or keeping it (in the statute book) would dilute protections given to a wife under Constitution and other statutes," John argued.

The matter will now be heard on Monday.

Yesterday, John had argued that the removal of exception 2 from Section 375 of the Indian Penal Code will not amount to creation of a new offence.

She had argued that the exception was nothing but a legal fiction which if removed, will not be creation of a new offence.

Earlier, John had emphasized that 'consent' is an underlying condition in the exceptions to Section 375 IPC. John sought to establish that 'sexual acts' when done 'with consent' are not an offence. However, when the same sexual acts are done "without a woman's consent", that becomes the fundamental foundational basis of invoking Section 375 IPC.

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.

Previous Reports can be read here:

Marital Rape - Removal Of Exception From Sec 375 IPC Will Uphold Woman's Bodily Integrity: Rebecca John To Delhi High Court

Marital Rape| 'Consent' An Implicit Condition In Exceptions To S. 375 IPC: Amicus Curiae Rebecca John To Delhi High Court

Marital Rape - 'Classification On Basis Of Marriage Unreasonable' : Amicus Curiae Tells Delhi HC

Exception For Marital Rape Based On An Outdated Concept Of Marriage Presuming Consent : Amicus Curiae Tells Delhi High Court

Title: Case Title: RIT Foundation v. UOI and other connected matters