- Under the law, any sexual act by a man with his wife is not rape if the woman is not a minor
- Delhi HC judges noted that the issue involves a 'substantial question of law'
- The HC granted leave to the parties to file an appeal before the Supreme Court
The Delhi High Court on Wednesday delivered a split verdict on petitions demanding the criminalisation of marital rape. While Justice Rajiv Shakdher, who headed the division bench, favoured striking down the marital rape exception, Justice C Hari Shankar said the exception under the IPC is not unconstitutional and was based on an intelligible differentia.
Both judges granted certificates to appeal to Supreme Court saying substantial questions of law are involved.
While delivering the verdict, Justice Shakdher said "as far as I am concerned, the impugned provisions -- exception 2 to section 375 and section 376 (E)... are violative of Articles 14, 15, 19(1) (A) and 21 of the Constitution and are hence struck down." He said this declaration will operate from the date of its pronouncement.
However, Justice Shankar said "I have not been able to agree with my learned brother" and added that these provisions do not violate Articles 14, 19 (1) (A), and 21 of the Constitution. He said the courts cannot substitute their subjective value judgement for the view of the democratically elected legislature and the exception is based on an intelligible differentia. He said the challenge to the provisions by the petitioners cannot sustain.
The bench had in February reserved its orders in the petitions which challenged Exception 2 to Section 375 of the IPC, which exempts non-consensual sex between husband and wife from the ambit of rape. The court had also appointed Senior Advocates Rebecca John and Rajshekhar Rao as amici curiae in the matter.
The petitioners (NGOs RIT Foundation, All India Democratic Women's Association and others) had 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 HC had in February granted two weeks to the Centre to state its stand on the petitions seeking criminalisation of marital rape. However, the Centre urged the court to grant more time which was refused by the bench on the ground that it was not possible to defer an ongoing matter endlessly. The Centre had submitted that it has sent a communication to all states and Union Territories seeking their comments on the issue and urged the court that the proceedings be adjourned till such time the inputs are received.
Solicitor General Tushar Mehta and Central government standing counsel Monika Arora, representing the Centre, had said that as this case could have an impact on social and family life with far-reaching consequences, the government can place its stand only after a consultative process.
In its 2017 affidavit, the Centre had opposed the pleas submitting 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 tool for harassing husbands. However, the Centre told the court in January 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.
'Marital rape biggest form of sexual violence'
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 is 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 submitted that the Domestic Violence Act was specifically promulgated for recognising spouse sexual violence.