What is consent? Delhi High Court sees a simple video on tea during marital rape hearing

What is consent? As the friend of the court, the amicus curiae had a simple video to show to the Delhi High Court during a hearing on marital rape.

 |  2-minute read |   14-01-2022
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Amicus Curiae, officially "the friend of the court", had a simple video to show to the Delhi High Court, during the hearing of a case on marital rape. It was necessary. Before we get to the how and the what and the why, have a look at the video. 





The Delhi High Court judges were hearing a particular law, which is referred to as 'Exception to Section 375', and why this particular exception to the main Section 375 needs to be removed from the legal constituition. Laws are made in statements and rules, and any deviation from these rules which is allowed is known as exception. 

Section 375 talks about rape, and this Section has historically had one exception: that of marital rape. This means that if a married man ever has non-consensual sex with a woman, it will not be termed as rape. The case in the High Court is about this exception, that whether marital rape should be considered rape or not.


Justice Rajiv Shakdher and Justice C Hari Shankar are the 2 Justices who are considering this matter in the Delhi High Court.

Justice Shakdher feels that the relationship of a husband and wife is irrelevant to whether a sexual act amounts to rape. Rape is rape irrespective of marital status, and consent is at the crux of the matter.

Justice C Hari Shankar doesn't say that non-consensual sex by a husband should not be criminalised or punished. But he sees this matter as something which has two parties to the offence, and wants to consider the consequences of changing a particular old law. He wonders if marital rape was "so unconstitutional" for them to strike it off the law. 


It simply violates a married woman's rights under Article 14 (right to equality) and Article 21 (right to life) under the Constitution. It also violates personal and sexual autonomy; bodily and decisional privacy, and reproductive choices. Having an exception to Section 375 just allows crimes like marital rape to be seen as not a big deal. 


Senior advocate Raj Shekhar Rao, who is the amicus curiae, put a few points to the court:

  1. He shared the above video, which explicitly talks of how simple the matter of consent really is. 
  2. He pointed out how the Supreme Court held rape as a serious offence and how the exception takes away a married woman's ability to enforce her rights, just because she is married. The existing laws indicate that a woman is probably safer if she is harmed by a stranger that her own husband, who is supposed to be her protector.   
  3. He pointed out how the laws treat non-consensual sex for the same couple differently based on their relationship status. In the pre-marriage state, a man forcing himself on a woman is treated as an offence. But as soon as they are married, the same act cannot be termed as rape any more. Anyone who does the act 5 minutes before the marriage will be treated as an offender, but the same act done 5 minutes after the marriage will not see the man as an offender. 
  4. He shared how "Consent" was material for an unmarried woman, but immaterial for a married woman just because she was "Married".
  5. Consent is not assumed even for sex workers, so how could it be assumed for a married woman? 

And that's how the point was made.


Akshata Kamath Akshata Kamath @akshispublished

Akshata Kamath is a Digital Storyteller at DailyO. She loves to simplify Finance, Business, Healing and History.

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