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[Marital Rape] Nature of relationship cannot put same offence on different pedestal: Delhi High Court

Earlier, Rao had told the Court that she had a two-fold argument. First, whether the exception is ultra vires the Constitution and secondly, whether striking it down would create a new offence.

“There is no dispute that a woman has full right to bodily integrity and a right to say no and just because Section 375 does make this act by a husband a criminal offense does not mean that wife has no right to say no. A wife has a remedy to divorce on the grounds of cruelty. She can also register a complaint under 498A,” Rao submitted.

“It is humbly submitted that exception to Section 375, while not criminalizing the act of unwilling intercourse with a spouse does not compel a wife to remain with or have sexual intercourse against her will with her husband. She has the remedy of divorce on the grounds of cruelty (under personal law) and she has right to register a criminal case under Section 498A of the IPC,” she added.

On the issue of creating a new offense, Rao said that the Supreme Court has specifically said that the Courts cannot create a new offence.

“The Supreme Court clearly said that we don’t have the power to create a new offense because Courts do not have the machinery of the legislature,” she submitted.

Source: Barandbench

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