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

State cannot have a plausible ‘legitimate interest’ in saving a marriage when that marriage is ‘tyranny’, says Justice Rajiv Shakdher

New Delhi: The court held that if the MLA is let off with a “light punishment”, it would set a wrong example before the society. Justice Rajiv Shakdher of Delhi High Court on Wednesday said that it is incumbent on courts to take decisions concerning complex social issues and not “dribble past them”, while striking down the marital rape exception in a split 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 said in his judgment.

The judge said the doctrine of judicial self-restraint is not applicable in cases involving determination of controversies that involve alleged infractions of fundamental rights by the State, in 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,” said Justice Shakdher.

Ruling on Exception 2 of Section 375 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under IPC Section 376 (rape), Justice Shakdher said, “(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.”