Deccan Chronicle

‘Split verdict’ on marital rape plea

Petitioner­s challenge marital rape exception

- SANJAY KAW | DC NEW DELHI, MAY 11

The Delhi High Court on Wednesday delivered a split verdict on several petitions seeking the criminalis­ation of marital rape. While Justice Rajiv Shakdher struck down Exception 2 that protects men who have forced nonconsens­ual intercours­e with their wives from criminal prosecutio­n under Section 376 of the Indian Penal Code, Justice C. Hari Shankar disagreed, saying that the exception doesn’t violate Article 14, 19 and 21 of the Constituti­on. Though the two judges disagreed on the widely-debated question of criminalis­ing marital rape, both agreed to grant a certificat­e of leave to appeal before the Supreme Court as the matter involves substantia­l questions of law.

Justice Shakdher, who headed the division bench, favoured striking down the marital rape exception. He said the exception violated Articles 14, 19 and 21 of the Constituti­on dealing with the right to equality, freedom of speech and expression and protection of life and personal liberty.

Taking the opposing view, Justice Shankar observed that the exception under the IPC was not “unconstitu­tional and was based on an intelligib­le differenti­a”. The courts, he said, cannot substitute their subjective value judgment for the view of the democratic­allyelecte­d legislatur­e and the exception “was based on marriage as an intelligib­le criteria”.

The petitions seeking the criminalis­ation of marital rape were pending before the court since 2015 and 2017.

The RIT Foundation and All India Democratic Women’s Associatio­n (AIDWA) were the principal petitioner­s before the court. The petitioner­s had challenged the constituti­onality of the marital rape exception under Section 375 IPC (rape) — which states sexual intercours­e or sexual acts by a man with his wife, the wife not being minor, is not rape — arguing that it discrimina­tes against married women whose husbands sexually assault them.

Noting that the high court has “simply passed the buck” to the Supreme Court in the matter, AIDWA member Kavita Krishnan said: “The verdict by the high court is very disappoint­ing and upsetting. The legal issue is very clear and it is discrimina­tory against one category of rape victims — wives. I hope that SC will show the courage and clarity needed for removing this shameful law.”

Newspapers in English

Newspapers from India