Petitioners say disappointed over split marital rape order

NEW DELHI: Women activists and petitioners asking for the criminalisation of marital rape expressed their disappointment at the split verdict delivered on the issue by the Delhi high court on Wednesday.

In the high court, one judge called an exception in the Indian Penal Code that exempts husbands from being prosecuted for non-consensual sex with their wives as “morally repugnant” but the other said it did not violate any law, was not unconstitutional and could continue to exist.

Both judges —justices Rajiv Shakdher and C Hari Shankar — allowed the petitioners to approach the Supreme Court.

Advocate Colin Gonsalves, who appeared for who appeared for one of the petitioners Khusboo Saifi, said that the judgment was disappointing and they had not expected such a ruling.

“After so many arguments, we had not expected a split verdict. We had expected that the Delhi high court would have done away with such a practice of marital rape, like many other countries have already done. It is actually frustrating since the matter has been going on for so long and my client is a victim of marital rape who is still awaiting relief,” he said.

Mariam Dhawale, national general secretary of the All India Democratic Women’s Association (AIDWA), one of the petitioners, said, “We are disappointed that the violence that the married women undergo was not taken into consideration by the court and we shall surely appeal to the higher court that finally victims of sexual violence within marriage get justice. “

, All India Progressive Women’s Association member Kavita Krishnan said the high court “simply passed the buck” to the Supreme Court.

“The verdict 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,” she said.

Advocate J Sai Deepak, who had represented the non-governmental organisation Men’s Right Group, welcomed the judgment but said the matter should have been referred to the Supreme Court much earlier.

“Although I am yet to read the judgment, I welcome the split verdict because it demonstrates the existence of two points of view on the subject. I am eager to read both points of view to understand how issues of jurisdiction, constitutionality and societal impact have been addressed. Obviously I am happy that one of the judges on the bench has agreed with our position but I am equally keen to read the opposite opinion.

Perhaps the matter could have been referred at the outset to the Supreme Court considering the pendency of the same issue before other high courts,” he told HT.

The Centre’s standing counsel, Monica Arora, said that the Union government was in the process of consultation with various stakeholders, adding that it was for the petitioners to take a call on moving the apex court.

“Married and unmarried women stand at two different pedestal and are different categories and the reason is because married woman has sections like 498 (cruelty by husband and relative), domestic violence, 376 (B) (remedy for separated woman), 377 (unnatural sex). A married woman can go to court against any form of cruelty which also includes sexual violence. From the Union’s side, the consultation

is already ongoing with chief justices, states and other stakeholders as this is going to impact every household,” she told HT.

During the hearing, the Centre had said that it is taking a “constructive approach” in the matter and had sought time to reach a conclusion, adding that a half hearted reply would directly affect the citizens of the country. Exception 2 of Section 375 of the IPC decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 18, is not rape. Judgments on the issue from two high courts on the same issue — Karnataka and Gujarat — are pending before the apex court.

Advocate Raj Kapoor, appearing for an intervenor, non-governmental organisation Hridey, said that he would move the top court against the high court’s verdict.

“The issue of marital rape is not only important from the angle of law but also from society. The judges of the Delhi High Court could not come to a consensus and passed a conflicting judgement. However, they have also issued a certificate to file an appeal before the Supreme Court. The issue now will be finally decided by the Apex Court. The other high courts should stop dealing with this issue and leave it to the honourable Supreme Court to give a final verdict on the same,” senior advocate Vikas Pahwa said.