Delhi HC question Centre - the rationale in discrimination between married and unmarried women regarding non-consensual sex

The Delhi High Court questioned the discrimination between married and unmarried women regarding non-consensual sex and its impact on their dignity. Justice Rajiv Shakdher asked the question while hearing a bunch of petitions demanding the criminalization of marital rape. 

Advocate Nandita Rao, appearing for the Delhi government, contended that the exception in Section 375 does not violate a woman’s right to bodily integrity. In case a couple is married, the complaint will be registered under Sections 377 (unnatural offenses), 498A (cruelty to a woman by husband/in-laws), and 326 of the India Penal Code.

Justice C Hari Shankar further remarked, "Imagine a woman going through her menstrual cycle. Husband wants to have sex and she says no, I am not in condition. He brutalizes her. And you are saying he will be charged under other Sections of IPC but not 375. For a live-in Relationship, this is an offence under 375, but then why not for the husband? The rationale is that relationships cannot put the same offence on a separate pedestal. The woman remains a woman." 

Advocate Raghav Awasthi, appearing for the petitioners, cited a judgment of the SC of the Philippines. He also said that even Pakistan penalizes marital rape. He further referred to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (UN-CEDAW) and informed that India is also a signatory. 

Senior Advocate Colin Gonsalves and advocate Karuna Nundy appearing for the petitioners, said that striking down the exemption, which is "under-inclusive," does not form another offense. Suppose a wife does not have the right to say no to her partner. In that case, she does not have the right to say yes freely or to say yes either freely argue that a tiny proportion of marital rape cases are reported. The number of false cases is even smaller.

The Court listed the case on Wednesday when advocates, including those advocates representing the Central government, will make their submissions.

Author: Papiha Ghoshal