New Delhi (Sputnik): The Delhi high court has ruled that marriage is not a permanent consent for sex and the wives have the right to deny it. The court's observation came while hearing pleas seeking to make marital rape an offense.
"Marriage does not mean that the woman is all the time ready, willing and consenting. The man will have to prove that she was a consenting party," the court said.
The two-member bench consisting of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar unequivocally said that in a relationship like marriage, both man and woman have a right to say ‘no' to physical relations.
"Force is not a pre-condition of rape. If a man puts his wife under financial constraint and says he will not give her money for household and kids expenses unless she indulges in sex with him and she has to do it under this threat. Later, she filed a rape case against the husband, what will happen," the court explained.
Meanwhile, the Indian government has opposed the main petitions saying marital rape cannot be made a criminal offense as it could become a phenomenon which may ‘destabilise' the institution of marriage.
Legal experts feel the judgment when it is finally laid down, is bound to have a far-reaching impact on the Indian society.
"There is widespread sexual violence prevalent within the matrimonial institution in India and it is an accepted fact but terming non-consensual marital sex as rape may have its own implications especially in divorce cases and in issues where property and assets are involved. This could become a pretext and blackmailing tool for some," Dev Nalva, lawyer legal researcher based in Delhi told Sputnik.
Interestingly, the National Health and Family Survey (NFHS-4), show that 5.4% of women have experienced marital rape in the country. In an earlier judgment, India's apex court had declined to recognize marital rape as a crime.