There is no "right" but only an "expectation" of conjugal relations with wife in a marriage and the same also cannot lead to the husband having forced relations with her, the Delhi High Court was told on Friday.
Senior advocate Rebecca John, who has been appointed the amicus curiae to assist the court on the petitions seeking to criminalise marital rape, said that expecting a sexual relationship is not wrong in marriage but if the wife withdraws, the remedy is through dialogue or the husband may seek a civil remedy.
"Expectation cannot result in the husband having forced sex with his wife... The consequences (of the withdrawal) may be something else. It may result in the marriage breaking down. I'm not denying that. It may result in the husband seeking a civil remedy. In a given situation, the husband may be right and the right may be unreasonable... (but) there is no right. There can be an expectation. The expectation cannot lead to forcible sex on your wife," the senior lawyer told a bench of Justices Rajiv Shakdher and C Hari Shankar.
"I don't want to trivialise it. This is not about expectation and one woman saying one day I'm not in the mood. This is about a man exercising his dominant right over his wife despite the wife saying that I cannot and will not do it with you," she explained.
The amicus' submissions were in response to the court's observation that there was a "quantitate difference" between a married and unmarried relationship, with the former entailing an element of expectation of a reasonable sexual relationship.
The bench is hearing PILs 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.
In response to the court's query that if the offence of rape was to be analysed from the perspective of the act and not the woman, the amicus said that unlike several offences under the Indian Penal Code, the offence of rape was "gendered" and has "consent" of a woman as one of the ingredients.
The court also questioned if the marital rape exception could be said to be unconstitutional if the law was gender-neutral.
The amicus said that a gender-neutral exception would create a "false equivalence" between a husband and wife and disregard the "lived experiences" of wives who are not equal in reality.
She also submitted that the Justice JS Verma Committee report on amendments to criminal law had recommended the deletion of the marital rape exception and highlighted that such an exemption is not present in several other sexual offences in the Indian Penal Code, including Section 354A IPC which concerns showing pornography to a female.
Even if the wife has the option to prosecute the husband for other sexual offences, it cannot be said to be the prosecution for the offence of rape, the senior advocate stated. The amicus also highlighted that under the IPC, sexual intercourse with one's wife, who is living separately, whether under a decree of separation or otherwise, without her consent, was punishable. She submitted that the Supreme Court has said in a case that marriage was "personal" and not "institutional" in nature.
On the point of the offence of rape being punishable with ten years imprisonment, the senior lawyer said that there were "exceptionally high" sentences in the country. Another amicus curiae and senior advocate Rajshekhar Rao had earlier told the court that apprehensions of misuse and protection of the institution of marriage cannot be a ground to sustain the marital rape exception in the Indian Penal Code (IPC).
He had said that there was always a possibility of misuse of criminal offences and had the object of the legislation been to protect the institution of marriage, wives would not have been given the power to prosecute husbands for any offence including lessor sexual offences.
The Centre, on January 13, had told the high court that it was considering a "constructive approach" to the issue.
The central government, in its earlier affidavit filed in the case, has said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands.
The Delhi government has told the court that marital rape was already covered as a "crime of cruelty" under the IPC.
The petitioners have challenged the constitutionality of the marital rape exception under section the IPC provision for rape on the ground that it discriminated against married women who are sexually assaulted by their husbands. The court will hear the matter next on January 24.