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Delhi HC gives split verdict on marital rape, SC to decide on ‘substantial questions of law’

Justice Shakdher held that the exception for marital rape in IPC is unconstitutional, while Justice Shankar disagreed, saying exception is based on ‘intelligible differentia’.

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New Delhi: The Delhi High Court Wednesday delivered a split verdict on the petitions challenging the constitutional validity of the exception in the Indian Penal Code (IPC) that exempts men from being prosecuted for marital rape.

Justices Rajiv Shakdher and C Hari Shankar, who were hearing the matter, differed over whether or not the provision should be struck down. 

Justice Shakdher held that the exception to Section 375 of the IPC, which exempts the husband from being prosecuted for rape, is unconstitutional. Justice Shankar, on the other hand, said he does not agree with Justice Shakdher, and ruled that the exception is based on “intelligible differentia”.

Both judges granted a certificate to appeal against the decision to the Supreme Court, saying that substantial questions of law are involved.

The judgment came on petitions filed by two NGOs, the RIT Foundation and the All India Democratic Women’s Association, as well as two individuals, which challenged the constitutional validity of the second exception to Section 375 of the IPC. 

Section 375 of the IPC defines the offence of rape, but carves out an exception for sexual intercourse between a married couple. “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,” the exception reads. 

Senior advocates Rebecca John and Rajshekhar Rao assisted the court as amicus curiae (friend of the court). The bench had reserved its judgment in the petitions on 21 February. 

In a 2017 verdict, the Supreme Court had read down this exception to increase the age of consent for sexual intercourse within marriages to 18 from 15 years under it. However, the matter it was hearing dealt exclusively with cases of child marriage, and not with the wider issue of marital rape.

Also Read: 82% women in India able to refuse sex to their husbands, finds govt’s family health survey

Centre’s stand remained unclear

In August 2017, the central government had filed an affidavit opposing the petitions asking the court to do away with the exception, saying that marital rape could not be added as an offence to the IPC as it could have a “destabilising effect on the institution of marriage” and become an “easy tool for harassing husbands”.

It had also highlighted the difficulties in investigating allegations of marital rape, saying, “The question is what evidences the courts will rely upon in such circumstances, as there can be no lasting evidence in case of sexual acts between man and his own wife.”

However, ever since the court began hearing arguments in the matter last December, the Centre has refused to take a stand on the issue.

During a hearing in January this year, the Centre had told the High Court that the issue of criminalisation of marital rape involves “family issues” and the dignity of a woman, and cannot be looked at from a “microscopic angle”. Solicitor General Tushar Mehta had then, on behalf of the government, asked for “reasonable time” to make the latter’s position clear on the issue. 

In an additional affidavit filed on 3 February, the central government had urged the High Court to defer the hearings to await the outcome of a consultative process with stakeholders. 

On 7 February, the court once again gave the Centre two weeks’ time to make its stand clear, but it did not do so. 

However, the Centre hasn’t formally withdrawn its 2017 affidavit so far, leading lawyers to believe that the affidavit therefore makes its stand clear.  

(Edited by Gitanjali Das)

Also Read: ‘Marital rape exception not absolute’ — Karnataka HC refuses to quash rape case against husband


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