The Delhi High Court opined on Tuesday that a woman does not need to have a physical relationship with her husband to maintain her marriage. The court also held that to constitute a rape, physical force is not a necessity.

In a marital relationship, both the man and the woman have a right to say no to a physical relationship, said the bench of Chief Justice Gita Mittal and C Hari Shankar of the Delhi High Court. The bench said this while hearing a plea to make marital rape an offence while there were others opposing it.

The bench said “marriage does not mean that the woman is all time ready, willing and consenting. The man will have to prove that she was a consenting party.”

The argument in court by the non-profit organization Men Welfare Trust was negated by the court. The organization, which opposes making marital rape an offence, had argued that in spousal sexual violence, the use of force or threat of force are significant basics to constitute rape. This argument was struck down by the court.

The court said “it is incorrect to say that force is necessary for rape. It is not necessary to look for injuries in a rape. Today, the definition of rape is completely different.”

Women already have protection from sexual violence in a marriage under the currently available laws, such as the Prevention of Women from Domestic Violence Act, harassment to married woman, sexual intercourse with wife without her consent while she is living separately and unnatural sex, argued the NGO’s representatives Amit Lakhani and Ritwik Bisaria in court.

Reacting to this argument, the court opined that if under these laws, if such coverage is available to women, then why should there be any exemption for Section 375 of the Indian Penal Code that declares that to intercourse or a sexual act by a man with his wife is not rape.

The court further said “force is not a pre-condition of rape. If a man puts his wife under financial constraint and says he will not give her money for household and kids’ expenses, unless she indulges in sex with him and she has to do it under this threat. Later, she filed a rape case against the husband, what will happen?”

The non – profit groups RIT Foundation and the All-India Democratic Women’s Association challenged the constitution legality of Section 375 (which defines rape) of the Indian Penal Code which they claim is discriminatory for those women who are being sexually assault by their husbands. That plea is being opposed by the Men Welfare Trust.

The next date of hearing on August 8. The arguments are not completed and will continue.

An earlier plea to make marital rape an offence had also been opposed by Kolkata-based NGO Hridaya. They argued that when a person enters the institution of marriage, consent for physical relationship is for all time.

(Adapted from