These observations were made during the arguments of Advocate Karuna Nundy, who appeared for the petitioners.
Nundy argued that conjugal rights end where bodily integrity begins. Conjugal rights, she said, begin and end at cohabitation and the rest is expectation, as no wife has given her forever consent to her husband.
“The conjugal right begins and ends at cohabitation, rest is expectation. A denial of this expectation is a perfectly fair ground for divorce…There is an expectation and an in-principle agreement, it may even be an agreement to agree. No wife is saying that when I am ill or exhausted or menstruating that I hereby and forever consent to sexual intercourse. And that if you have intercourse with me, that will be something else, a lesser offence or not called a rape. That it will be akin to slapping or pinching of the posterior.”
She added that by virtue of Exception 2, a husband can impose his right without going to a court of law, and thereby do something illegally which cannot be done legally.
“It would be like saying a wife who believes that she has a right to maintenance is permitted to sell her husband’s property without his consent… Even the Court cannot direct a couple to have sexual intercourse. It is not a conjugal right. If any party refuses to cohabit, then it is only enforceable by attachment of property. A spouse can claim divorce on grounds of cruelty.”
Source: Barandbench
