100s of titles, one news app for just $10 a month.
Dive Deeper:
The importance of consent: On marital rape
The institution of marriage cannot be allowed to sanction force and violence
Explained | Marital rape in India: The history of the legal exception
The court took seven years to hear petitions seeking to criminalise marital rape before coming up with a split verdict.
Morning Digest | Nobody should cross ‘Lakshman Rekha’, says Law Minister after SC freezes sedition law; PM Modi to address second global COVID Summit today, and more
A select list of stories to read before you start your day
Delhi HC delivers split verdict on pleas seeking to criminalise marital rape
While Justice Rajiv Shakdher favours striking down of marital rape exception, Justice C Hari Shankar says it is not unconstitutional
One subscription that gives you access to news from hundreds of sites
The New Jane Crow
Justice Alito’s draft opinion signals a willingness to subject women and girls to second-class citizenship.     
Commentary: The pendulum is swinging back, reversing hard-won sexual freedoms and civil rights
The leaked Supreme Court opinion by Justice Samuel A. Alito Jr., which would overturn Roe v. Wade, marks a devastating…
Get all your news in one place
Latest National news:
Residents speak out against Delany's later trading plan
"It's going to be the residents who cop the flak and the pub who cops the profit."
Read news from The Economist, FT, Bloomberg and more, with one subscription
Learn More
Barnaby Joyce’s drought envoy texts not ‘documents of a minister’, prime minister’s office claims
PMO again refuses freedom of information request to release any messages Joyce says were reports on his work
Richmond Vale Rail Trail plan rolls on as second part exhibited
The proposal traverses three different local government areas, so has been split into two sections for development approval.
‘Hello it’s John Howard calling’: former PM says Liberal party asked him to ‘campaign extensively’
The current prime minister is unpopular in city marginal seats, so the Coalition is banking on robocalls and letterbox drops…
ACT elective surgeries to be postponed
The ACT Government have confirmed that their system is experiencing extremely high demand, meaning some elective surgeries will be postponed.
From analysis to good news, read the world’s best news in one place
Pryce would be an X-factor signing for Knights: Dom Young
Young believes Pryce could 'bring a lot' to the Knights.
Federal election briefing: Morrison snubs NITV while Albanese walks away from costings queries – and Penny Wong a secret weapon?
Tuesday: The best of Guardian Australia’s 2022 federal election coverage

In a marriage, conjugal expectation is a two-way street: Delhi HC judge who declined to strike down marital rape

By Jagriti Chandra

The Centre's concern that criminalising marital rape may destabilise the institution of marriage is a "legitimate" one and doing so may require spouses to draw up a detailed agreement before sex or invite a third party to act as witnesses, Delhi High Court judge C. Hari Shankar said as he declined to strike down the marital rape exception in a split verdict delivered on Wednesday.

In a marriage, conjugal expectation is a two-way street, where "consent is given as a part of spousal intimacy although the will to engage may be absent," Justice Shankar said.

If every such case was treated as marital rape, "then the only way partners in a marriage may survive would be by drawing up a detailed written agreement and the steps to be observed for courtship or mating or, by creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness — none of which is healthy for the survival of the institution of marriage."

He disagreed with the argument that consent alone mattered and marriage changed nothing and said marriage is accompanied by obligations that the partners have to bear including conjugal expectations, financial obligations and, finally, duty towards progeny.

"Therefore, the legislature has consciously avoided using the word rape in the context of spousal relationships, not to protect the spouse but those connected with them, namely, families and the progeny," the judge said.

Harping on the importance of conjugal rights in marriage, Justice Shankar said the same was recognised in the Hindu Marriage Act which provides for restitution of conjugal rights. "The remedy is available to both spouses and denial of sex by either spouse is construed as cruelty and, thus, is available as a ground for divorce."

He also underlined the signs of injury on a partner need not necessarily mean there has been non-consensual sex as "in the age of sexual liberation" injuries could be a sign of "passion". He was referring to sado masochistic sex.

“Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse as is clear upon perusal of the definition of ‘cruelty’ found in Section 3 of the D.V. Act. A wife cannot prescribe a particular punishment that can be imposed on the husband ‘to satisfy her ego’,” Justice Shankar said.

The definition

Section 3 of the Protection of Women from Domestic Violence Act, 2005 provides a definition for domestic violence, which includes physical, sexual, verbal and emotional abuse.

The judge felt that the issue of marital rape required consideration of social, cultural and legal aspects and the wisdom of the legislature needed to be respected and decisions on the matter should be left to Parliament.

In February, Minister for Women and Child Development Smriti Irani told Parliament, "to condemn every marriage in this country as a violent marriage and to condemn every man in this country as a rapist is not advisable in this august House." The government in Parliament and before the court has repeatedly said that it is in the process of a consultative process on marital rape to seek the opinion of all stakeholders for comprehensive amendments to criminal laws.

In 2017, when the Delhi High Court was hearing the matter, the government, in its affidavit, submitted that it had to be ensured that marital rape doesn't become a phenomenon that destabilises the institution of marriage and an easy tool for harassing the husbands. It added, "what may appear to be marital rape to an individual wife, it may not appear so to others."

This stance derives from the 167th report of the department-related Parliamentary Standing Committee on Home Affairs on the Criminal Law (Amendment) Bill, 2012 that was drafted following the Justice J.S. Verma Committee report that also called for criminalising marital rape.

What is inkl?
The world’s most important news, from 100+ trusted global sources, in one place.
Morning Edition
Your daily
news overview

Morning Edition ensures you start your day well informed.

No paywalls, no clickbait, no ads
Enjoy beautiful reading

Content is only half the story. The world's best news experience is free from distraction: ad-free, clickbait-free, and beautifully designed.

Expert Curation
The news you need to know

Stories are ranked by proprietary algorithms based on importance and curated by real news journalists to ensure that you receive the most important stories as they break.

Dive Deeper:
The importance of consent: On marital rape
The institution of marriage cannot be allowed to sanction force and violence
Explained | Marital rape in India: The history of the legal exception
The court took seven years to hear petitions seeking to criminalise marital rape before coming up with a split verdict.
Morning Digest | Nobody should cross ‘Lakshman Rekha’, says Law Minister after SC freezes sedition law; PM Modi to address second global COVID Summit today, and more
A select list of stories to read before you start your day
Delhi HC delivers split verdict on pleas seeking to criminalise marital rape
While Justice Rajiv Shakdher favours striking down of marital rape exception, Justice C Hari Shankar says it is not unconstitutional
One subscription that gives you access to news from hundreds of sites
The New Jane Crow
Justice Alito’s draft opinion signals a willingness to subject women and girls to second-class citizenship.     
Commentary: The pendulum is swinging back, reversing hard-won sexual freedoms and civil rights
The leaked Supreme Court opinion by Justice Samuel A. Alito Jr., which would overturn Roe v. Wade, marks a devastating…
Get all your news in one place