Summary:
New Delhi, May 11 (PTI) Introducing the possibility of a husband being regarded as his spouse"s rapist will be completely antithetical to the institution of marriage which is the most pristine institution of mankind, and on which rests the entire bedrock of society, Justice C Hari Shankar said Wednesday in his dissent verdict on criminalising marital rape.
Justice Shankar said that in this relationship of marriage, which has a unique character and complexity, the legislature has advisedly felt that allegation of “rape” has no place and "a legislation that seeks to keep out, from the parameters of such a relationship, any allegation of rape, in my view, is completely immune to interference".
In his 200-page verdict, Justice Shankar agreed with the counsel for the petitioners that there can be no compromise on sexual autonomy of women, or the right of a woman to sexual and reproductive choice.
"Nor is a husband entitled, as of right, to have sex with his wife, against her will or consent.
Conjugal rights, as counsel for the petitioners correctly assert, end where bodily autonomy begins.
No court can, in this day and age, lend its imprimatur to any theory of a husband, by reason of marriage, being entitled, as a matter of right, to engage in sexual relations with his wife, at his will and pleasure.
Sexual activities between man and woman, within or outside marriage, require, in legalspeak, consensus ad idem," he said.
Justice Shankar differed with the submission of the counsel for the petitioners and the amicus curiae the only logical consequence of grant of complete sexual autonomy to a woman, whether a wife or not, is outlawing of the exception in the law.
“I am firmly of the view that, in thus treating sexual acts between a husband and wife, whether consensual or non-consensual, differently from non-consensual sexual acts between a man and woman not bound to each other by marriage, the legislature cannot be said to have acted unconstitutionally.
The distinction in my view, is founded on an intelligible differentia having a rational nexus to the object sought to be achieved by the impugned exception, which fulfils not only a legal but also a laudatory object, and does not compromise any fundamental rights guaranteed by Part III of the Constitution,” he said.
Justice Shankar said the foundation of the petitioners’ case is fundamentally flimsy and a castle cannot be built on reeds.
“Marriage is neither a playground, nor a gladiatorial arena.
It is the most pristine institution of mankind, on which the entire bedrock of society rests.