New Delhi: The NGO which is opposing several petitions against marital rape argued before a bench of judges headed by Justice Rajiv Shakdher that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be separate from the context of a marriage.
To say that all sexual relationships -- whether marital or non-marital -- stand on the same footing "militates common sense" and a mere "difference of opinion" on this aspect can not make the marital rape exception under the Indian Penal Code (IPC) unconstitutional, Delhi High Court was told on Thursday by NGO Men Welfare Trust, reported PTI.
Lawyer J Sai Deepak, representing the NGO, argued that several provisions of criminal law treated marriage differently and the "blinkered approach" of viewing the issue of sexual intercourse between a husband and wife only from the perspective of "consent", in the absence of the context of the marital setting, is incorrect.
"Rape between two rank strangers (on one hand) and institution of marriage and other relationship having trappings of a marriage within the meaning of a domestic relationship in the Domestic Violence Act (on the other), cannot be the same. That is the intelligible differentia," argued Deepak before the bench which also comprised Justice C Hari Shankar.
The NGO, however, clarified that it was not against the recognition of "spousal sexual violence" but sought "special treatment" to protect the institution of marriage and the children in order to avoid the "deleterious impact" of the usage of the word " rape".
"Consent five minutes before and five minutes after marriage, what difference does it? Well, maintenance, obligations come into the picture. It is a milestone... There are countervailing rights from conjugal rights to whatnot," explained the lawyer while he asserted that the issue of criminalisation of marital rape was of "policy" and whose social aspect ought to be considered.
"Distinction or difference of opinion does not rise to the level of unconstitutionality. So for someone to say 'no, whether it is a marital relationship and non-marital relationship, independent of context, consent is consent and therefore, the setting does not matter and impactions don't matter, is one point of view. The other is 'sorry, these are two different circumstances and one is an institution that has been around for several millennia'," he argued.
The lawyer stated that a "basket of remedies" is already available in law, in case of sexual abuse in a marriage, which is different on account of the difference in relationship and context, and their alleged "inadequacy" cannot be a ground to strike down the exception.
Several PILs, filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman, are being heard in the court which sought striking down of the exception granted to husbands under the Indian rape law.
The petitioners have challenged the constitutionality of the marital rape exception under section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.