The Delhi High Court on Thursday asked a question that if a woman is married, does she not have the right to say ‘no’ to sex without consent? While rape can be registered in all other non-consensual sex relationships, why can’t a married woman have this right.

The central government told the court that it is in the process of taking some “affirmative steps” on the issue of marital rape.

Advocate Raghav Awasthi appeared for the petitioner. It argued that “criminalization of marital rape is a violation of the rights of married women under Article 21 of the Constitution”. Awasthi also pointed out that marital rape is a punishable offense in various jurisdictions including Pakistan.

Justice Rajiv Shakdher observed that when even a sex worker has the right to say no to her client, then how can a woman who is a wife be deprived of her husband’s right.

Justice Shakdher demanded that “You gave the example of sex worker. She can say no at any stage. A wife can be placed on a “lesser pedestal,”

Justice Shakdher made the observation while hearing arguments in a batch of petitions seeking to declare marital rape as an offence, which at present is not an offense as an exception under Section 375 of the Indian Penal Code.

Friend of Justice and senior advocate Rajasekhar Rao had also said that “sex workers can also allege rape if their consent is not there.”

​Rao submitted that “Every other woman including a woman who is socially perceived as unchaste or of ‘easy virtue’ like a sex worker is entitled to the rights given in law but a married woman is not. This denial hits at the very core of her existence.”

 Justice Shakadher responded by agreeing to Rao’s submission –

“You have given a good example of a sex worker because if you take these circumstances into account, it can be said that this is a person who is used to entertain people. As they say, she is the lady of the night. He has a habit of entertaining people and so circumstances suggest that he should have been an exception too. We have decided not to do this. In fact, the courts have gone a long way in saying that they can say no at any stage… So, a sex worker actually sheds light on a circumstance that is sought to be protected by exception. The idea of ​​someone entering into a deal and then saying, ‘Sorry, I don’t want to go with this’ and then suing the person who has imposed it, which needs to be considered in light of the circumstances in which the husband and wife are kept,”

 Advocate Karuna Nandy, appearing for one of the petitioners, submitted that “sex with a sex worker is also expected as is the case in marriage”.

Whereas Justice C Hari Shankar, who was present on the bench along with Justice Shakadher, said that the “ cannot be equated.”

Justice Shankar said – “The sex in a relationship between a client and a sex worker cannot be compared to what is expected in a married relationship. If you enter that territory, you are in a very difficult position.”

And he added that –

” There is no doubt that women suffer. But we have to take into account the consequences of the man who is liable to a sentence of ten years. I repeat again that the section 375 provision does not say that rape should not be punished. The question is, can it be punished like rape? If we say yes, we should keep in mind that we are saying yes by eliminating a legislative provision. And we are saying that every item of 375 should apply, even if the parties are married to each other.”

Rao argued that rape is a rape and a rapist remains a rapist. Therefore, no amount of classification or verbal juggling can change the reality.

He submitted that “In this backdrop, the Exception is particularly egregious as it denies a wife the ability to prosecute her husband for having sex with her without consent… Every other woman, including a sex worker, is entitled to the rights given in law but a married woman is not. This denial hits at the very core of her existence. The effect of this in a modern-day constitutional democracy would tantamount to law turning a blind eye to a gross injustice,”

​Quoting several apex court judgments, Rao also said that courts have repeatedly held that rape is a violation of a woman’s most cherished rights and it constitutes a crime against society.

“The law is usually made by the legislature. But when the legislature fails and enacts a law that is in violation of the Constitution, then what is the court expected to do? The courts have repeatedly held that they can be struck down. Reports after reports have found the laws to be unreasonable and they have been struck down by the court… The argument that marital rape would destroy the institution of marriage also does not stand… It is said that criminal law should not be brought into the bedroom, but this law has been in the bedroom for years.”

​Anticipating that scrapping this exception would lead to a flood of cases against husbands under Section 376, Rao said it was baseless.

Section 376 of IPC –

[A person accused of raping a girl is tried under section 376, during which the counsel for both the parties on the premise of the evidence gathered after the investigation by the police and also the statements of the witnesses with the court, Judges choose the idea their experience and discretion, within the event of conviction within the end, there’s is a provision of rigorous punishment of not less than seven years and maximum of 10 years and imprisonment for life.]

“Now the question is, do women still face physical and verbal abuse, but still it’s not brought out? The law says you’re two equals within the eyes of law. So, why should a husband’s desire to possess sex that day trump the wife’s desire to not? Let me put it very simply. A wife can prosecute the offender under sections A-Z but an unmarried woman can prosecute him under A-Z plus 376. Why are we shying away from saying that rape can be committed within the contours of marriage? A situation is being created where the law says you have better remedy against a third party for the same offence but not your husband. prosecute the offender under sections A-Z but an unmarried woman can prosecute him under A-Z plus 376. Why are we shying away from saying that rape can be committed within the contours of marriage? A situation is being created where the law says you have better remedy against a third party for the same offence, but not your husband. A husband who can force himself on wife is being told that he’s assaulting, no raping.”

The court will continue its hearing on Friday.

Arora’s submissions are expected after Rao concludes his arguments. Senior advocate Rebecca John is likely to present her case next week.

The bench has said that it will continue hearing the matter till next week and if the government decides to do away with the exception, it may save the judges the trouble of writing the verdict.

Advocate Monica Arora, appearing for the Centre, said that “an affidavit has been filed detailing the steps being taken by the government to reform the Indian Penal Code and other laws. He also submitted that suggestions have been sought from the Chief Justice of India, Chief Justices of all High Courts as well as Chief Ministers of all States and Members of Parliament on the issue.”

Whereas the bench says that it cannot wait for the government to reform the code. It further said that the government cannot expect judges to give their suggestions on issues pending before them for decision.