Mr Justice Hayden has been asked to decide whether a man can keep having sex with his wife

A judge in a specialist court has been asked to decide whether a man can keep having sex with his wife of more than 20 years to ensure she is not raped.

The woman has learning difficulties, and carers say there is evidence that her mental health has reached a stage where she no longer has the capacity to consent.

Lawyers representing social services bosses have suggested that a judge should consider making an order barring the man from continuing to have sex with his wife in order to ensure that rape does not take place.

At a preliminary hearing today at the Court of Protection in London, where issues involving people who lack the mental capacity to make decisions are considered, a judge said the man might be put in a situation where he could face prison if he breached an order, or an undertaking, to not make love to his wife.

Mr Justice Hayden was told that the man had offered to give an undertaking not to have sex with his wife.

Carers acting on behalf of the woman want a judge in the Court of Protection (pictured), where issues involving people who lack the mental capacity to make decisions, to consider the case

But the judge said he wanted to examine evidence in detail - and hear arguments from lawyers representing the woman, the man, and the council involved - before making any decisions.

He also suggested that such an order would be difficult to police.

'I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife - and the right of the State to monitor that,' he said.

'I think he is entitled to have it properly argued.'

Despite the judge’s remarks, the ability for a man to have sex with his wife without her consent was explicitly banned in 1991 and is punished by the courts as any other rape.

A full hearing is expected to take place in the near future.

Mr Justice Hayden said the couple involved could not be identified in media reports of the case.