Split Delhi High Court verdict on marital rape

New Delhi, May 11

The Delhi High Court on Wednesday delivered a split verdict on petitions seeking to declare marital rape a crime.

A Division Bench of Justice Rajiv Shakdher and Justice C Hari Shankar failed to agree on the constitutionality of Exception 2 to Section 275 of the IPC that treats sex with one’s wife without her consent and against her will as an exception to the crime.

While Justice Shakdher declared Exception 2 to Section 375 of the IPC and two other provisions unconstitutional, Justice Hari Shankar disagreed.

Having delivered dissenting verdicts, the two judges granted certificate to appeal to the Supreme Court as it involved substantial questions of law. Maintaining that a married woman’s right to bring the offending husband to justice needs to be recognised, Justice Rajiv Shakdher struck down Exception 2 to Section 375 and Section 376B of the IPC as also Section 198B of the code, insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife not under 18 without her consent, as violative of Articles 14, 15, 19(1)(a) and 21.

“It is time that all stakeholders bite the bullet. It would be tragic if a married woman’s call for justice is not heard even after 162 years, since the enactment of the IPC. To my mind, self-assured and good men have nothing to fear, if this change is sustained. If I were to hazard a guess, those amongst us who want status quo to continue would perhaps want to have the MRE (marital rape exception) struck down if the victim involved was his/her mother, sister or daughter,” Justice Shakdher said.

“As a society, we have remained somnolent for far too long. Deifying women has no meaning, if they are not empowered. They are our equal half; some would delightfully say our better half,” he said.

However, Justice Shankar differed with Justice Shakdher. “I am of the considered opinion that the petitions, as well as the challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the CrPC, have to fail,” he said in a separate verdict rejecting the petitions. “It cannot be equated with sex between strangers,” he added.

Justice Shankar said, “The impugned exception does not violate Article 14, but is based on an intelligible differentia having a rational nexus with the object both of the impugned exception as well as Section 375 itself.”

“The exercise of legislative discretion is entirely in order, and, to my mind, the challenge to the vires of the provision has no legs, whatsoever, to stand on,” Justice Shankar said, rejecting the challenge to Section 376B IPC.

To criminalise or not…

It would be tragic if a married woman’s call for justice is not heard even after 162 years of the enactment of IPC. — Justice Rajiv Shakdher

Marriage is the most pristine institution. It is neither a playground, nor a gladiatorial arena. — Justice C Hari Shankar