During the hearing of criminalising marital rape in the Delhi High Court, Justice Rajiv Shakdher said that marital rape is violative of the Constitution, but Justice C Hari Shanker upheld the validity of Section 376B and 198B
Representational image. PTI
The Delhi High Court Wednesday delivered a split verdict on criminalising marital rape. During the hearing, Justice Rajiv Shakdher said that marital rape is violative of the Constitution, but Justice C Hari Shanker upholds validity of Section 376 B and 198 B.
Justice Shakdher held that the exemption to the husband from the offence of marital rape in unconstitutional. Exception 2 of 375, 376B IPC was therefore struck down by him as violative of Article 14.
“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 struck down,” Justice Shakdher said.
Disagreeing with Justice Shakdher, Justice C Hari Shankar held that Exception 2 to Section 375 does not violate Constitution as it is based on intelligible differentia and reasonable classification.
Owing to a split verdict, the marital rape case will now be referred to a three-judge bench.
The two-judge bench on Wednesday said that the issue was a substantial question of law. “We grant leave to appeal,” the high court said.
The high court was pronouncing the judgement on a batch of pleas challenging the exception of Section 375 of the Indian Penal Code (IPC), which exempts husband from the offence of rape for forceful sexual intercourse with wife, as unconstitutional.
The bench of Justices Rajiv Shakdher and C Hari Shankar had reserved its judgement on 21 February, 2022.
Background of criminalising marital rape case in Delhi High Court
On 7 February, the Delhi High Court granted two weeks to the Centre to state its stand on the petitions seeking criminalisation of marital rape.
However, the Centre once again requested the high court for more time which was refused by the bench on the ground that it was not possible to defer an ongoing matter endlessly.
The Centre then said that it has sent a communication to all states and Union Territories asking them for their comments on the issue and urged the judicial body that the proceedings be adjourned till the time the inputs were received.
Solicitor General Tushar Mehta along with the Central government standing counsel Monika Arora, representing the Centre, had said that as the case could have an impact on social and family life with far-reaching consequences. They said that the government can place its take only after a consultative process.
The Delhi High court was hearing petitions filed by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
In its 2017 affidavit, the Centre had opposed the petitions stating that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy way for harassing husbands.
However, the Centre told the court in January this year that it was “re-looking” at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago.
The petitioners challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.
Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.
The petitioners had said that marital rape was the biggest form of sexual violence against women and the Delhi government had said that this act was already covered as a “crime of cruelty” under IPC.
NGO, Men Welfare Trust (MWT), which has been opposing the batch of petitions seeking criminalisation of marital rape, had argued that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage. It had stated that the Domestic Violence Act was specifically promulgated for recognising spouse sexual violence.
With inputs from agencies
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