‘Sex workers have the right to say no.. but the wife does not’, the court’s comment on marital rape

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The Delhi High Court on Wednesday delivered a split verdict on criminalization of marital rape, with Justice Rajiv Shakdher ruling in favor of criminalizing it.

He pointed to discrimination during his ruling, saying that while a sex worker has the right to say no legally, a married woman does not.

During the hearing, Justice Shakdher observed that continuance of this exemption under the Indian Penal Code is ‘seriously problematic’, as it undermines a woman’s right to prosecute her husband for non-consensual intercourse. .

According to the report, she said that while exceptions exist in the law book, sex workers as well as women separated from their husbands have the right to prosecute the offender under the rape law.

Justice Rajiv Shakdher presided over a division bench delivering a split verdict on the criminalization of marital rape. He said that though the right to withdraw consent is the core of a woman’s right to life and liberty and there is no permissible for marital rape exception (MRE).

Circumstances in which a wife may say ‘no’ to sex with her husband, which in the provision “only exacerbates the lack of autonomy and sexual agency.”

The judge of Delhi High Court further said that marital rape The exception “undermines women’s rights”, as sex workers or women separated from their husbands have the right to say no to non-consensual sex, while married women do not.

Endorsing the idea of ​​declaring marital rape as an offence, the top judge observed that the fact that the rapist is the husband of the victim does not make the act of sexual assault any less harmful, degrading or dehumanizing. He emphasized that marital rape leaves not only physical scars but “very deep scars on the psyche of the victim”.

Let us tell you that in the hearing on bringing marital rape under the purview of the crime, the court has given a fractured decision. The opinion of Justice Rajiv Shakdher and Justice Harishankar differed in this matter. He told the petitioners that they can appeal in the Supreme Court.