[Marital Rape] Sex workers have right to say no to customer; can married woman not have the right (against husband)? Justice Rajiv Shakdher

The Delhi High Court on Thursday questioned how married women can be denied the right to say no to the husband for sexual intercourse when all others are entitled to file rape case for non-consensual sex [RIT Foundation v Union of India]..Justice Rajiv Shakdher observed that a sexual worker is also entitled to say no to her customer and queried as to how a woman who is a wife can be denied that right when it comes to her husband. "You gave the example of sex-worker. She can say no at any stage. Can a wife be placed on a lesser pedestal," Justice Shakdher demanded.The observation came from Justice Shakdher during the hearing of arguments in a batch of petitions demanding the criminalisation of marital rape, which is currently not an offence by way of an exception in Section 375 of the Indian Penal Code (IPC)..Amicus Curiae and Senior Advocate Rajshekhar Rao had said that even sex workers have the right to accuse a man of rape if he forces himself on them."Every other woman including a woman who is socially perceived as unchaste or of 'easy virtue' like a sex worker is entitled to the rights given in law but a married woman is not. This denial hits at the very core of her existence," Rao submitted.Justice Shakdher responded by agreeing to the same.“You gave a good example of the sex worker. Because if you were to take into account the circumstances, what better defence to say that this is the person who is used to entertaining people. She is the lady of the night as they say. She is used to entertaining people and therefore circumstances would suggest that she should also have been the exception. We have chosen not to do it. In fact, courts have gone very far by saying that she can say no at any stage… ...So, a sex worker actually shines the light on a circumstance which is sought to be protected by the exception. The idea of someone entering into a bargain and then saying, 'Sorry, I don’t want to go with it' and she can then prosecute the person who imposed himself is something that requires to be considered in light of the circumstances in which the husband and wife are placed,” he said..Advocate Karuna Nundy, appearing for one of the petitioners, pointed out that even with a sex worker, there is an expectation of sex as is the case in a marriage. However, Justice C Hari Shankar, who was on the Bench with Justice Shakdher, said that two cannot be equated.“Let’s not try and equate the expectation of sex in a relationship between a customer and a sex worker with the expectation in married relationship. If you enter that territory, you are on a very very sticky wicket,” Justice Shankar said.He added, “There is no doubt that the lady has suffered. But we have to keep in mind the consequences for the man who is liable to be punished for ten years… I am again repeating that the Section 375 proviso does not say rape should not be punished. The question is should it be punished as rape. If we are to say yes, we must keep in mind that we are saying yes by striking down a legislative provision. And we are saying every ingredient of 375 should apply even if the parties are married to each other.”.Rao argued that a rape is a rape and a rapist remains a rapist. Therefore, no amount of classification or verbal jugglery can alter the reality.“In this backdrop, the Exception is particularly egregious as it denies a wife the ability to prosecute her husband for having sex with her without consent… Every other woman, including a sex worker, is entitled to the rights given in law but a married woman is not. This denial hits at the very core of her existence. The effect of this in a modern-day constitutional democracy would tantamount to law turning a blind eye to a gross injustice,” he submitted.Citing several judgments of the apex court, Rao said that the courts have repeatedly held that rape violates the most cherished rights of a woman and is crime against the society.“The law is usually made by the legislature. But when the legislature fails and enacts a law that is in violation of the Constitution, then what is the court expected to do? The courts have repeatedly held that they can be struck down. Reports after reports have found the laws to be unreasonable and they have been struck down by the court…The argument that marital rape would destroy the institution of marriage also does not stand… It is said that criminal law should not be brought into the bedroom, but this law has been in the bedroom for years.”.On apprehensions that the quashing of this exception would result in a deluge of cases against husbands under Section 376, Rao said that the same were unfounded.“The question is how many women still face abuse, physical and verbal, but still do not call it out? The law says you are two equals in the eyes of law. So, why should a husband's desire to have sex that day trump the wife's desire to not? Let me put it very simply. A married woman can prosecute the offender under sections A-Z but an unmarried woman can prosecute him under A-Z plus 376. Why are we shying away from saying that rape can be committed within the contours of marriage? A situation is being created where the law says you have better remedy against a third party for the same offence, but not your husband. A husband who can force himself on wife is being told that he is assaulting, no raping.”.The Court will continue with the hearing on Friday, when Rao is likely to conclude his submissions. This is likely to be followed by submissions from Arora. Senior Advocate Rebecca John will make her submissions next week..Earlier, the Court was informed by the Central government that it was in the process of taking some positive steps in the matter.The Bench said that it will continue to hear the matter till next week and that if the government does decide to do away with the Exception, it would save judges the trouble of writing a judgment.Advocate Monika Arora, who appeared for Centre, said that an affidavit has been filed detailing the steps that the government is taking to reform the Indian Penal Code and other laws. She submitted that suggestions have been sought from the Chief Justice of India, Chief Justices of all the High Courts as well as Chief Ministers of all the states and Members of Parliament on the issue.The Bench, however, said that it cannot wait for the government to revamp the Code. It further said that the government cannot expect judges to give their suggestions on issues that are pending for adjudication before them..[Marital rape] "We may be right, we may be wrong; but we can't look away:" Delhi High Court