December 9, 2022

‘Too much emphasis on wife’s consent’, Delhi HC tells amicus on marital rape | India News – Times of India

NEW DELHI: There is a “qualitative difference” in sexual equation between people who are married to each other and between those who are not, the Delhi high court observed on Friday, adding one can’t “equate chalk and cheese”.
Justice C Hari Shankar, who is part of a bench headed by justice Rajiv Shakdher, reminded Rebecca John, appointed as amicus curiae to assist the court on the petitions seeking to criminalise marital rape, that while “there is a right to expect sexual relations from both sides in a marriage, there is no such right when the parties are not married”.
Explaining why he remains sceptical of “too much emphasis” on wife’s consent made by the amicus, Shankar said Parliament did provide “some kind of rational basis” to justify the exception in IPC 375 to protect husbands.
“We are obfuscating this entire argument, this entire rationale (provided by legislature) by concentrating on consent, consent, consent. We can’t deny that there is a presumption of constitutionality in the law made by Parliament. Specially in a criminal case we don’t lightly quash a provision that is not deemed an offence,” Shankar said.
He wondered if the court can “substitute our sensitivities or sensibilities” and “step into the legislature’s shoes” to overturn a legal provision when there is a “prima facie rational basis” for it given by Parliament.
“That’s the kind of dialogue which unfortunately from day one I am not getting an answer for, have been posing it again and again…we are not supposed to find ways to quash a provision,” the judge told the amicus, outlining his reservations.
At the very start of Friday’s hearing, Shankar pointed out that one can’t “close ones eyes” to the fact that there is a difference that can be understood between a marital and non-marital relationship.
“There is one case where a man has no right to ask at all for sex since they are not in a marriage, but another case where he has a right sanctified with marital bond between them, he can expect reasonable sexual relations with partner,” Shankar said.

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