On Friday the Delhi High Court observed that there is a “qualitative difference” in sexual equation between people who are married to each other and between those who are not.
The division bench of justices Rajiv Shakdher and C Hari Shankar of Delhi High Court also told Senior Advocate Rebecca John, Amicus Curiae in the matter of petitions demanding criminalisation of 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”.
Shankar also explained about how he is sceptical of “too much emphasis” on wife’s consent made by John, Shankar said Parliament did provide “some kind of rational basis” to justify the exception in IPC 375 to protect husbands. The exception to Section 375 of the Indian Penal Code, says sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
“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.
“That’s the kind of dialogue which unfortunately from day one I am not getting an answer for, have been posing it again and again...we are not supposed to find ways to quash a provision,” Shankar told Rebecca John.
Shankar pointed out that there is a difference that can be understood between a marital and non-marital relationship.
“There is one case where a man has no right to ask at all for sex since they are not in a marriage, but another case where he has a right sanctified with marital bond between them, he can expect reasonable sexual relations with partner,” Shankar said.