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Legally, sex worker can say no, not married woman: judge

Justice Rajiv Shakdher of Delhi High Court on Wednesday that that it’s incumbent on courts to take choices regarding complicated social points and never “dribble past them”, whereas placing down the marital rape exception in a cut up verdict.

“As that is the mandate of the Constitution and, therefore, a duty and obligation which must be discharged if one is to remain true to the oath taken under the Constitution. Thus, the mea culpa on behalf of the institution is that one way or the other the issue ought to have been laid to rest much earlier,” Justice Shakdher stated in his judgment.

The decide stated the doctrine of judicial self-restraint just isn’t relevant in instances involving dedication of controversies that contain alleged infractions of basic rights by the State, within the context of violation of civil rights or human rights. “Thus, ‘shunning responsibility’ to decide what falls within the ken of the court and leaving it to the Executive and/or the Legislature, in my view, would constitute abandonment of duty and the role which the Constitution has defined for the courts,” stated Justice Shakdher.

Ruling on Exception 2 of Section 375 that protects males, who’ve compelled non-consensual intercourse with their wives, from prison prosecution beneath IPC Section 376 (rape), Justice Shakdher stated, “(A) sex worker has been invested with the power to say ‘no’ by the law, but not a married woman. In a gangrape involving husband of the victim, the co-accused will face the brunt of rape law; but not the offending husband, only because of his relationship with the victim.”

He stated that to a lady violated by her husband by being subjected to the vilest type of sexual abuse, it’s no reply to say that the legislation offers her different cures. None of different statutes deliver inside its fold the offence of rape, he added.

The State can’t have a believable “legitimate interest” in saving the wedding when the identical is “tyranny”, the decide stated. On the argument that the State has recognised different types of sexual offences and granted the exception solely to guard the familial construction, Justice Shakhder stated this “amounts to giving recognition to the abominable Common Law Doctrine that a married woman is nothing but chattel who loses her sexual agency once she enters matrimony”.

The decide stated the try to hold away the legislation even when a lady is subjected to compelled intercourse by her husband, “by demarcating private and public space”, is to “deny her the agency and autonomy that the Constitution confers on her”. One can’t shut one’s eyes to rape merely as a result of it’s troublesome to show, the decide stated on the query of proof in marital rape.

Sexual assault by the husband must be known as out as rape, “as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender”, he stated.

“It impairs and nullifies their sexual agency with regard to coitus and their right to procreate or abstain from procreation. More fundamentally, their power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses, is completely eroded,” Justice Shakdher stated concerning the exception.

The conjugal expectation is tenable so long as the expectation just isn’t equated to an unfettered proper to have intercourse with out consent of the spouse, he stated whereas coping with argument on husband’s expectation.

Justice Shakdher stated: “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty, which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate.”

Justice Shakhder additionally struck down Section 376B IPC and Section 198B of CrPC “insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years), albeit, without her consent”.

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On the argument that placing down the exception would result in registration of false instances, Justice Shakdher stated that notion just isn’t backed by any empirical information. He additionally stated that courts are totally outfitted to cope with false instances.

“This submission, if I may say so, is suggestive of the fact that married women in India are manipulative or capable of being manipulated more than their counterparts in other jurisdictions,” the decide stated.

On the query that placing down the exception would create new offence, Justice Shakdher stated the offence of rape is already outlined and all that will occur is that the offending husband would fall inside its ambit.

The State, as a consultant of the society, shares the accountability to deprecate and punish sexual abuse and violence of each type, he stated.

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