'Woman has right to say 'no' for sex to husband': Ex-SC Justice Deepak Gupta

“Women have the right to say ‘no’ to sex with their husbands,” said former Supreme Court judge Justice Deepak Gupta as he shared his views on marital rape in the backdrop of Right to Privacy.

Spelling out his views on marital rape at online event marking LiveLaw’s 10th anniversary lecture series, Gupta said: “Women has a right to say ‘no’. She has a right to say ‘no’ to her husband also… Just because you are husband and wife, wife does not have a right to say no to have sex? When she says no then it means no.”

“There is nothing more to it. It is a very simple argument. It is just that we have to outgrow our patriarchal and archaic system of thought. Otherwise, there is nothing. This is the most simple thing on earth,” Gupta added.

‘A woman has the right to say ‘No’. She has the right to say ‘No’ to her husband also. When wife says ‘No’ to sex, it means a ‘No’. It’s a simple argument. We have to outgrow our patriarchal and archaic system of thought’ : Former SC Judge Deepak Gupta on criminalising Marital… pic.twitter.com/mo0fkONkdR

— Live Law (@LiveLawIndia) August 21, 2023

His remarks on the issue of marital rape which is pending in the Supreme Court for adjudicating.

Justice Gupta was part of the apex court bench led by Justice Madan B Lokur in the Independent Thought v. Union of India judgement which held that sexual intercourse with a minor wife aged below 18 will amount to the offence of rape.

As per Section 375 of the Indian Penal Code (IPC), rape includes all forms of sexual assault involving non-consensual intercourse with a woman.

However, under Exception 2 to Section 375, sexual intercourse between a husband and a wife aged over 15 e(which was read as 18 years in Independent Thought) does not constitute “rape” and thus, prevents such acts from prosecution.

In May 2022, a Division Bench of the Delhi High Court delivered a split verdict on a batch of petitions challenging the exception provided to marital rape in the IPC.

Justice Rajiv Shakdher held that the exception is unconstitutional, while Justice C Hari Shankar upheld its validity and said the exception was “based on an intelligible differentia”.

Now, a batch of pleas is listed before the Supreme Court of India including an appeal against a judgment by the Karnataka High Court that allowed the prosecution of a man for raping his wife.

With inputs from LiveLaw