In India, Sex Worker Entitled to Decline Consent, But Not a Wife
NEW DELHI, (IANS) -The Delhi High Court, in its split verdict on the criminalization of marital rape, has observed that rape is rape, and a rapist remains a rapist, while every other woman, including a sex worker, is entitled to decline consent and prosecute for rape, but the right which is not available to a married woman.
In the split verdict passed on May 12, Justice Rajiv Shakdher supported striking down the contentious exception in the Indian Penal Code which exempts forceful sexual intercourse by a man with his own wife from the offense of rape.
“No amount of classification and verbal jugglery can alter that reality,” he held.
The opposing argument was that the position of a sex worker cannot be compared with persons bound by marriage. The perpetrator or the abuser cannot claim restitution of conjugal rights against a sex worker and correspondingly, a sex worker cannot claim maintenance against the perpetrator or abuser.
There is no emotional relationship between the sex worker and the perpetrator whereas the relationship between the husband and wife is a package comprising mutual rights and obligations which are social, psychological, religious, and economic. It cannot be limited to just one event of consent in the context of sexual relationships, as per the countering argument.
Justice Shakdher stated that the exemption of the husband from the offense of marital rape is unconstitutional while Justice C. Hari Shankar said he does not agree with Shakdher.