Shivani Gadhavi –
Published On: December 15, 2021 at 21:30 IST
The Gujarat High Court while hearing a Public Interest Litigation (PIL) that is demanding for marital rape to be turned into a punishable offence, opined that the belief itself, of the husband getting rights to have sexual intercourse with wife against her consent after solemnization of marriage, is a blot to the institution of marriage.
The Counsel for the Petitioner, during the hearing, argued that the ‘three-century old’ principle of Sir Mathew Hale that stated ‘By marrying, the woman gives her irrevocable consent to sexual intercourse with her husband and he cannot be guilty of rape’, is already declared to be Unconstitutional in England and Scotland.
The Gujarat High Court Bench of Justices J.B. Pardiwala and Niral Mehta agreed with the Petitioner and stated that principle is not only Unconstitutional but also “absurd, unreal and unacceptable in today’s time.”
The Bench stated, “By marrying, no woman consents to her husband committing forcible sexual intercourse on her. The solemnization of marriage implies at best an understanding that the couple would have a consensual sexual relationship as part of their married life, not an understanding that the husband can force the wife into the act at his whim and against her consent.”
The Court furthermore stated that a woman should have a right to reproductive choices and sexual autonomy. The Court stated, “These are natural human rights that inhere in every human being and by their very inalienable human rights. Being inalienable, neither can such rights be surrendered nor can the law acknowledge or treat them as having been surrendered.”
The Gujarat High Court while asking for response from the Center Government and the State Government, posted the matter for further hearing on January 19th, 2022.
Also Read: Marital Rape and Intercourse during Judicial Separation – Position in India
Violence against women and Marital Rape