The Centre's concern that criminalising marital rape may destabilise the institution of marriage is a "legitimate" one and doing so may require spouses to draw up a detailed agreement before sex or invite a third party to act as witnesses, Delhi High Court judge C. Hari Shankar said as he declined to strike down the marital rape exception in a split verdict delivered on Wednesday.
In a marriage, conjugal expectation is a two-way street, where "consent is given as a part of spousal intimacy although the will to engage may be absent," Justice Shankar said.
If every such case was treated as marital rape, "then the only way partners in a marriage may survive would be by drawing up a detailed written agreement and the steps to be observed for courtship or mating or, by creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness — none of which is healthy for the survival of the institution of marriage."
