Incorrect to say physical force necessary for rape, today’s definition completely different: Delhi HC on marital rape

On Tuesday, the Delhi High Court said that marriage didn’t mean that a woman would consent to physical relations to her husband. It also said that physical force was not necessary for constituting it was rape offence.

A bench comprising of Acting Chief Justice Gita Mittal and C Hari Shankar said that in a marriage, both had a right to refuse to physical relations.

The observation came after hearing pleas seeking to make marital rape an offence and others opposed it, saying that marriage did not mean that the woman is all time ready, willing and consenting. The man will have to prove that she was a consenting party.

Part of those opposed to the plea to make marital rape an offence was NGO Men Welfare Trust. Their representatives argued that a wife already has protection from sexual violence in a marriage under the available law harassment to married woman, sexual intercourse with wife without her consent while she is living separately and unnatural sex. The court responded that if it was already covered under the other laws, there didn’t need to be an exception in Section 375 of the IPC, which says intercourse by a man with his wife is not rape.