“A NO of marital partner must be respected”: Amicus curiae to Delhi HC on marital rape

Senior Lawyer Rebecca John appearing as amicus curiae told Delhi High Court that removal of the exception in the rape law that exempts forceful sexual intercourse by a man with his wife, will uphold the bodily integrity of women.

The Delhi High Court on Thursday continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts marital rape, Live Law reported.

“If the exemption goes, all that the court is doing is upholding the bodily integrity of a woman and putting people to notice,” Rebecca John told the court.

“Therefore a NO of a marital partner must be respected. We are not talking about trivial cases. Rape by itself is a serious offence,” John argued.

“The consequence in law if exception 2 is allowed to remain is that it disregards a wife’s consensual rights, the right to consent.”

John relied on the privacy judgment of the Supreme Court in KS Puttuswamy v. Union of India. She argued that the validity of exception 2 has to be tested not only with the twin test enshrined under Article 14 but also on the basis of its effect on the guarantees and freedoms of a woman enshrined in the Constitution of India, Live Law reported.

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women’s Association and two individuals.

Marital rape

According to the World Health Organisation, Sexual violence is defined as: “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.”

The marital rape is not recognised in 32 countries including India. In India, under section 375 of the Indian Penal Code (IPC), forced intercourse in marriages is considered to be a crime only if the wife is below the age of 18.