Delhi HC’s Split Verdict On Criminalisation Of Marital Rape

Justice Divyesh Joshi observed that the actual incidences of violence against women in India are probably much higher than the data suggests and that women may continue to face hostility and remain in environments where they are subject to violence

The Delhi High Court on Wednesday delivered a split verdict on the issue of criminalisation of marital rape. One of the justices favoured striking down the provision, but the other held it was not unconstitutional.

The division bench granted leave to the parties to file an appeal before the Supreme Court.

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.

The petitioners 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, does not constitute rape.

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.

In February, the Centre had urged the court to grant more time to enable it to state its stand on the issue after a consultative process.

The request was, however, turned down by the bench on the ground that it was not possible to defer an ongoing matter endlessly.

In a 2017 affidavit, the Centre had opposed the pleas, saying 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.