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Justice C Hari Shankar : Husband Requesting Wife for Sex is Exercising His Right

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marriage law insider

marriage law insider

Khushi Gupta

Published on: May 12, 2022 at 17:40 IST

A Division Bench of Delhi High Court on Wednesday delivered a split verdict regarding Criminalisation of Marital Rape.

Justice C Hari Shankar who was one of the two judges on the bench ruled against criminalising marital rape and refused to strike down Exception 2 to Section 375 of Indian Penal Code which exempts non-consensual sex by a man with his wife from the ambit of rape.

“Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex-facie unrealistic,” he stated.

The Hon’ble Judge said in his judgement, “If, therefore, the man, in such a situation, requests her on a particular occasion to have sex, he is exercising a right that vests in him by marriage, and requests his wife to discharge an obligation which, too, devolves on her by marriage,” 

“If the wife refuses, and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger. Nor can the impact on the wife, in such a situation, be equated with the impact of a woman who is raped by a stranger,” the judgment added.

The Hon’ble Judge remarked that, “Absent a subsisting and surviving marriage, neither would learned counsel have been here to argue the matter with the proficiency they exhibited, nor would we be here to pass judgement thereon.”

Also Read: Marital Rape and the Law