Marital rape: Delhi HC says all women have right to say no to non-consensual sex

Questioning how the dignity of a married and unmarried women can be differentiated, the Delhi High Court on Tuesday observed that every woman has the right to say 'no' to a non-consensual sex, irrespective of their marital status.

A bench of justices Rajiv Shakdher and C. Hari Shankar, while hearing a batch of petitions seeking criminalisation of marital rape, asked, "Just because she is married, does she lose her right to say 'no'?"

The high court further said the rationale and the thrust is that a relationship cannot be put on different pedestal as a woman remains a woman.

The bench noted that these sexual acts are not an offence as long as they are done with the "joyful consent of the participating parties.

"The bedrock of a marriage is the joyous relationship between the two parties and the state cannot dictate them that they can do this and not that. There are several things which people do out of consent in a relationship," the high court said.

The PILs were filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law. Some pleas have also been filed by some men's rights organisations that have opposed the petitions seeking to quash the exception.

The Delhi government counsel said if the court comes to a conclusion to strike down the exception, a new offence will have to be created and the constitutional scheme does not permit the judiciary to create a new offence as it does not have the machinery as that of the legislature.

To this, Justice Shankar said the court has the power to strike down the exception or a statutory provision if it finds it to be unconstitutional.

"I am repeating this, this exception is a firewall and we are testing this firewall. Whether this firewall stands the test of constitutional scrutiny, it has to be seen," Justice Shakdher said.

The court listed the matter for Wednesday for hearing further arguments.