Delhi High Court delivers split verdict on marital rape

A Division Bench of Justice Rajiv Shakdher and Justice Hari Shankar fails to agree on the constitutionality of Exception 2 to Section 275 of the IPC which treats sex without consent of wife and against her will by her husband as an exception to the crime

Photo for representation. PTI

Tribune News Service

Satya Prakash

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 Hari Shankar failed to agree on the constitutionality of Exception 2 to Section 275 of the Indian Penal Code (IPC) which treats sex without consent of wife and against her will by her husband as an exception to the crime.

In such cases, charges of rape can't be attracted against the husband for non-consensual sex with his wife in view of the existing exception to rape law.

While Justice Shakdher declared Exception 2 to Section 375 of the IPC unconstitutional, Justice Hari Shankar didn't find anything wrong with it.

"There is no support to show that the impugned exception violates Articles 14, 19 or 21...it's based on intelligible differentia, Justice Shankar said, adding that the challenge can't be sustained.

Having delivered dissenting verdicts, the two judges granted certificate to appeal to the parties to approach the Supreme Court as it involved substantial questions of law.

The Delhi High Court had on February 21 reserved its verdict on petitions seeking criminalisation of marital rape even as the Centre said it can spell out its stand on the contentious issue only after consultation with states and other stakeholders.

It had refused to grant further time to the Centre to make its stand clear on the issue.

Stating that a communication had been sent to all states and other stakeholders seeking their views and suggestions on the issue, Solicitor General Tushar Mehta had requested the Bench to adjourn the matter until such time the necessary inputs were received.

The Centre maintained that criminalising marital rape has very far-reaching socio-legal implications and a meaningful consultative process with various stakeholders, including the state governments, was needed.

The Bench – which had on February 7 given seven weeks to the Centre - had reserved its verdict, saying it was not possible to adjourn an ongoing matter as there was no definite date by when the consultations will be over.

The court can’t fold its hands and sit when people complain about a particular law, it had said during the hearing on petitions filed by RIT Foundation and three others seeking to criminalise marital rape,

The petitioners had challenged the validity of exception 2 to Section 375 of the IPC on the grounds that it discriminated against women raped by their husbands.

Section 375 of the Indian Penal Code defines rape as sexual intercourse without consent and against the will of a woman. But exception to the Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent and against her will.

But in October 2017, the SC ruled that sex with one’s minor wife would amount to rape. It watered down the exception to Section 375 of the IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape.

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