If the Hon’ble High Courts were to criminalise acts, which are exempted under the existing criminal laws of the land, based on Fundamental Rights against Discrimination, would that be fair?
When a husband misapplies his conjugal rights without the consent of his own wife, would that tantamount to Rape? The Inshorts message says, YES.
The argument which appears to have been applied to arrive at the above judgement doesn’t seem to be sound to me as the ‘right against discrimination’ is a guarantee granted by the Constitution against exploitation and deprivation without an intelligible differential.
In the case of a Rape, even if there is no consent, or any of those ingredients necessary to constitute Rape, the preexisting CONJUGAL RIGHT, excludes a man from being treated as a Rapist.
I guess, for want of any other section to penalise the husband, to invoke the charges of Rape against the husband seems inappropriate.
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