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17. 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. [See State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575.]

wife's rights under Article 21 of the Constitution, the court can scrutinize the "intimate personal sphere of marital relationships". [See Joseph Shine, at paragraph 218.] 42.3. The purported protection of conjugal rights by not penalizing forced sex within marriage is not a legitimate object post-adoption of the Constitution as it does not align with the understanding of conjugal rights as it obtains today. [See John Vallamattom at paragraph 36.] Conjugal rights end where bodily integrity begins while enforcing a decree of restitution of conjugal rights between a married couple. Court can direct either party i.e., husband or wife to cohabit but it cannot force them to have sexual intercourse. Thus, refusal of either party to cohabit can only lead to attachment of property or imprisonment in civil prison. A spouse can even obtain a divorce in case of non-compliance with the decree in his/her favour on the ground of cruelty. Therefore, by denying a spouse sex, a person's Signature valid Digitally Signed By:VIPIN Signing Date:11.05.2022 18:29:14 property and freedom may be at risk but not his/her bodily integrity. [See Section 9 of the HMA and judgment rendered by this court in Harvender Court v. Harmander Singh, AIR 1984 Del 66 as also the decision rendered by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 9015.] Therefore, the expression "conjugal rights" cannot include non-consensual acts adverted to, say for example, in Clauses (a) and (b) of Section 375 of IPC. Conjugal rights as enforced via courts begin and end at cohabitation and consortium. Anything beyond this is reduced to the status of conjugal expectation only, the denial of which is the ground for divorce. The courts are unanimous in holding that sexual intercourse cannot be forced via a decree of restitution of conjugal rights. MRE, on the other hand, sanctions and indeed encourages husbands to have forced sexual intercourse with their wives.

42.4. At present, the act of forced sexual intercourse can be punished only if ingredients of lesser offences under Section 354 and related but distinct offences under Section 498 and such other provisions of IPC are present. Via MRE, a husband gets sanction to enforce his conjugal right contrary to what the understanding of the law is without approaching the court. Thus, allowing a husband to enforce his conjugal expectation of sex by permitting him to have forced sexual intercourse with his wife without penal consequences is akin to saying that a wife who believes that she is entitled to maintenance, would have the right to sell her husband's personal belongings and property without his consent and thereupon appropriate the proceeds towards her maintenance.

Digitally Signed By:VIPIN Signing Date:11.05.2022 18:29:14 who is in a position of trust i.e., in a fiduciary capacity is more egregious than one done by a stranger. [See Section 376(2)(f) of the IPC.] 93.4. The argument that the exception needs to be retained to preserve the institution of marriage is flawed for the following reasons: First, the law itself recognizes that it cannot force parties to have sexual intercourse even if they are married. This is evident from the fact that even orders for restitution of conjugal rights can only be enforced by attaching property. [See Order XXI Rule 32 of the Code of Civil procedure, 1908 (CPC) and Saroj Rani.] Second, forced sexual intercourse in marriage, far from preserving the institution of marriage, is a reflection of what the marriage ought not to be. Marriage denotes a partnership of equals with reasonable marital privileges for both spouses. However, reasonable expectations or privileges cannot be equated with willingness or consent by default in all situations. [See Joseph Shine, Indra Sarma v. V.K. Sarma, (2013) 15 SCC 755; State of U.P. v. Chhotey Lal, (2011) 2 SCC 55030.] 93.5. Marriage is no longer as "sacred" or "sacrosanct" as it was considered in the past. Legislative provisions for divorce and judicial separation support this conclusion. [See Sections 10 to 13B of the HMA; Sections 23 and 24 of the SMA; Sections 32 and 34 of Parsi Marriage and Divorce Act, 1936 and Sections 10, 10A and 23 of the Divorce Act, 1869]. 93.6. Furthermore, procreation is not the only purpose of marital intercourse as is evidenced by the fact that it is impotence rather than sterility which makes a marriage voidable. [See Section 12(1)(a) of HMA.] This further reinforces the inbuilt statutory recognition of the right of a wife to expect a healthy sexual relationship with her spouse. Implicit in this presumption is that such a relationship is consensual. Therefore, the Signature valid In short "Chhotey Lal"