Too much emphasis on wife’s consent: HC

 Too much emphasis on wife’s consent: HC

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Abhinav.Garg@timesgroup.com

22.01.2022

New Delhi: There is a “qualitative difference” in sexual equation between people who are married to each other and between those who are not, the Delhi HC observed Friday, adding one can’t “equate chalk and cheese”.

Justice C Hari Shankar reminded Rebecca John, appointed as amicus curiae to assist the court on the petitions seeking to criminalise marital rape, that while “there is a right to expect sexual relations from both sides in a marriage, there is no such right  when the parties are not married”.

Explaining why he remains sceptical of “too much emphasis” on wife’s consent made by the amicus, Shankar said Parliament did provide “some kind of rational basis” to justify the exception in IPC 375 to protect husbands. “We are obfuscating this entire argument, this entire rationale (provided by legislature) by concentrating on consent, consent, consent. We can’t deny that there is a presumption of constitutionality in the law made by Parliament. Specially in a criminal case we don’t lightly quash a provision that is not deemed an offence,” Shankar said. He wondered if the court can “substitute our sensitivities or sensibilities” and “step into the legislature’s shoes” to overturn a legal provision when there is a “prima facie rational basis” for it given by Parliament.

John however maintained that there is no “right” but only an “expectation” of conjugal relations with wife in a marriage and the same also cannot lead to the husband having forced relations with her. “ In a given situation, the husband may be right and the right may be unreasonable. . . (but) there is no right. There can be an expectation. The expectation cannot lead to forcible sex on your wife,” the senior lawyer noted.