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Marital Rape issue should be kept outside jurisdiction of court: J Sai Deepak to Delhi High Court

He went on to argue that a perusal of Section 375, 376B, 376C and 498A of the IPC showed that the legislature has identified four distinct situations where a woman’s bodily integrity is challenged. Therefore, there is an intelligible differential in the manner in which these offences are treated.

“The point that I wish to make is that there are four gradations of sexual offences. First is by a rank stranger and 375 is the provision in relation to that. Second is a person who enjoys a relation of authority and that is under 376C. Third is 376B where a former husband commits an offence. And then there is 498A, where the offence is acts committed by husband while being a husband. These are the four distinct situations. Therefore, there is an intelligible differentia in the manner in which these offences are treated.”

Stating that the legislature has identified a difference between will and consent and that in certain cases, he said,

“The legislature has made a difference between will and consent. Section 376B speaks of ‘without her consent’. The point is even when the husband is reduced to a stranger, the legislature is reluctant to use the word consent. In certain instances, even if there is no will, consent manifests as the consequence of a relationship. Like Section 376C is the situation where will is absent but consent is present. In fact, judgments say while they may overlap, they are not the same.”

Source: Barandbench

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