If sex worker has right to say no to sex, why should a wife be less empowered: HC | India News – Times of India

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NEW DELHI: Can a wife be put on a lower pedestal or be less empowered than a sex worker who has the right to say no at any stage, the Delhi high court said on Thursday while hearing a batch of petitions on marital rape.
The court’s remarks came when it pointed out that to exclude “certain circumstances” from the ambit of rape “because of inter-party relationship” is problematic and that the marital rape exception could be examined in the light of protection granted to sex workers in rape law.
A bench of justices Rajiv Shakdher and C Hari Shankar heard the court-appointed amicus on reasons why the exception granted under Section 375 (rape) of the Indian Penal Code (IPC) must be struck down. Justice Shakdher pointed out that the rape laws grant no exemption in case of forced intercourse with a sex worker who chooses to withdraw consent at a belated stage, wondering why then should a wife be “less empowered”.
“Our courts have gone as far as saying she can say no at any stage. Can a wife be put at a lower pedestal? Be less empowered in law?” he said.
Amicus Raj Shekhar Rao added that the foundation of Section 375 was the lack of consent and there was no reason to give less protection to a married woman against non-consensual intercourse. He also informed the bench that he has received suggestions from various quarters.
“Advocate Rushab Aggarwal highlighted that Section 375 contemplates a case of mistaken identity by the wife of the man being her husband. It talks about a wife giving consent under a mistaken identity, which shows even in a marriage, the element of consent is to be given,” Rao submitted.
However, Justice Shankar said that the expectation of sex in the case of a marital relationship was not the same as in the instance of a sex worker.
“We have to show that the legislature, in not making it (the offence) punishable as rape, has acted unconstitutionally. Let us not equate the two, you are on a sticky wicket here,” he said.
The judge also noted that most of the arguments were on “outrage rather than law” and asked Rao to focus on legal aspects.
“We are a court, we should not undermine (sic) by only showing angst and plight of wives, rather we also have to see the legal aspects,” he added.
Meanwhile, the Centre on Thursday told the high court that it was considering a “constructive approach” to the issue of criminalising marital rape and has sought suggestions from state governments, the Chief Justice of India, MPs and others on comprehensive amendments to entire criminal law.
Justice Rajiv Shakdher revealed that Solicitor General Tushar Mehta mentioned the matter before him earlier in the day. Central government lawyer Monika Arora told the bench that the Centre was undertaking a comprehensive task of amending the criminal law, which includes IPC Section 375.
The court will continue hearing the matter on Friday.



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