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Legally, A Sex Worker Can Say No, Not Married Woman: Delhi HC Judge On Marital Rape

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Mumbai: The Delhi High Court on Wednesday delivered a divided verdict on the criminalization of marital rape, with Justice Rajiv Shakdher ruling in favour of criminalizing it. He further said that legally a sex worker has the right to say no, but a married woman does not, pointing to discrimination.

During the hearing, Justice Shakdher said continuance of this exemption under the Indian Penal Code is “seriously problematic” as it undermines a woman’s right to prosecute her husband for non-consent.

The exception exists in the law book, even though sex workers, as well as wives who are separated from their husbands, have a right to prosecute the offender under the rape law, as reported by PTI.

Justice Rajiv Shakdher, who headed the bench on the criminalization of marital rape, observed that though the right to withdraw consent is the core of a woman’s right to life and liberty and the marital rape exception (MRE) makes no allowance for the circumstances in which a wife may say ‘no’ to sex with her husband, which “only exacerbate the lack of autonomy and sexual agency which stands embedded” in the provision.

The Delhi High Court judge further observed that the marital rape exception “undermines the rights of women” as sex workers or women separated from their husbands have the right to say no to non-consensual sex, whereas married women do not.

Justice Shakdher said, “The continuance of the MRE on the law is seriously problematic, while it emasculates the woman’s right to trigger prosecution against her husband for non-consensual sex, women, who are sex workers or are separated from their husbands, are invested with this right.”

Endorsing the idea of criminalizing marital rape, the top judge observed that the fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading, or dehumanizing and emphasised that marital rape leaves not only physical scars but also “much deeper scars on the psyche of the victim”.

The Delhi HC on Wednesday delivered a split verdict on the criminalization of marital rape, and the court has given time to the parties involved in the case to file an appeal with the Supreme Court. After the appeal is filed, the matter will be heard in the apex court.

(With Agency Inputs)

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