‘Split verdict’ on marital rape plea
Petitioners challenge marital rape exception
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.”