Conjugal Expectation of Lord Hale’s Ghost

What looms before us is Lord Hale’s Ghost.

Exception 2 to Section 375, IPC is referred to as Marital Rape Exception. MRE is bad in law as it violates Article 14. A ‘conjugal expectation’ to have sexual communion is not to be equated with an unfettered right to have sex without consent.

J. Sai Deepak’s contention – investigation of private and intimate spaces, because of fear of accusation of ‘rape’, would propel creation of evidentiary record concerning every act of intimacy – trivializes sexual abuse. This argument stems from a pre-conceived notion: married women lack a sense of proportion or are inherently manipulative.

Regrettably, I was not able to persuade Hon’ble Justice C. Hari Shankar. He, perhaps, hears a beat of a different drummer.

Hon’ble Justice Rajiv Shakdher of Hon’ble High Court of Delhi, Khusboo Saifi v. Union of India, [Writ Petition (Civil) No. 5859 of 2017].

What was ‘rape’ ten minutes earlier, submits Mr. Rao, is not treated as ‘rape’ ten minutes later.

Learned Counsel, I am constrained to observe, have regarded the existence of a marital relationship as just another incident. I do not understand, as to how marriages can be treated as an ‘imposed conception’ or even a ‘conception’ at all.

Introducing into marital relationships: possibility of ‘rape’ –  would, in my view, be completely antithetical to the institution of marriage, both in fact and in law. Supreme Court in Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 recognizes sex to be a ‘matrimonial obligation’. Irrespective of whether ‘conjugal rights’ extend to a right to have sex – sex remains a ‘conjugal obligation’, even if not mandatorily enforceable by Court.

If wives refuse and husbands, nonetheless, have sex – howsoever one may disapprove – it cannot be equated with an act of ravishing by a stranger. Any such assumption, in my view, is not only unjustified, but is ex facie unrealistic.

Hon’ble Justice C. Hari Shankar of Hon’ble High Court of Delhi, Khusboo Saifi v. Union of India, [Writ Petition (Civil) No. 5859 of 2017].