Marital Rape: Consent And Context Linked, NGO Tells HC

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Source: Times of India : 28 Jan 2020

New Delhi: Consent and context are linked, an NGO espousing men’s welfare told the Delhi high court on Thursday, pointing out that sex between a married couple couldn’t be viewed only from the perspective of consent.

“What changed in five minutes before and after marriage that the same woman could no longer allege rape? Well, it was marriage that changed the context of consent. Maintenance, obligations came into the picture. It is a milestone in life and brings with it many legal obligations. There are countervailing rights. So, there is an intelligent differentia between marital and non-marital,” advocate J Sai Deepak contended before a bench of justices Rajiv Shakdher and C Hari Shankar.

Appearing for the NGO Men Welfare Trust, Deepak pointed out that consent and context couldn’t be separated and it was the issue at the heart of this debate.

Expanding on the link between consent and context, Deepak maintained that marriage was treated differently in several provisions of criminal law and the “blinkered approach” of viewing the issue of sexual intercourse between a husband and wife only from the perspective of “consent”, in the absence of context of the marital setting, was incorrect.

“Rape between two rank strangers and institution of marriage and other relationship having trappings of a marriage within the meaning of a domestic relationship in the Domestic Violence Act, cannot be the same. That is the intelligible differentia,” underlined Deepak.

The lawyer argued that in the case of sexual abuse in a marriage, a “basket of remedies” was available in law, which was different on account of the difference in relationship and context. Their alleged “inadequacy” couldn’t be a ground to strike down the exception. He added that even abroad, spousal sexual violence was treated as an offence separate from rape.

“A marriage creates an ecosystem. And therefore, laws are meant to try and protect the integrity of the ecosystem as much as possible. I’m not making a submission that the ecosystem must be protected at the expense of one particular individual’s dignity. I’m saying there are safeguards,” Deepak said.

He also questioned the comparison made between Supreme Court’s interventions in Vishakha (sexual harassment guidelines), pointing out that the first was a case of legal vacuum, but here legislature had pointedly kept an exception.

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