In the split verdict passed on Wednesday, Justice Rajiv Shakdher supported striking down the contentious exception in the Indian Penal Code's Section 375 which exempts forceful sexual intercourse by a man with his own wife from the offence 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.
"The argument that in a marriage, there is a presumption in favour of consensual sex which is not present in forced sexual intercourse outside marriage is flawed. The argument is founded on the theory that husbands have a greater degree of laxity available to them with regard to consent when engaging in sex with their wives. That this argument is untenable in law can be tested against the plight of a sex worker. The Supreme Court has decried such an attempt by holding that even a sex worker has a right to refuse forced sexual intercourse," read the order.
Justice Shakdher stated that the exemption of the husband from the offence of marital rape is unconstitutional while Justice C. Hari Shankar said he does not agree with Shakdher.
"The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 and are therefore struckdown," said Justice Shakder.