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].