Criminalising marital rape is a hotly debated topic. The matter has now reached court. The Delhi High Court today delivered a split verdict. The case will now go to the Supreme Court.
Justice Rajiv Shakdher struck down Exception 2 that protects men who have forced non-consensual intercourse with their wives from criminal prosecution under Section 376 IPC. Justice C Hari Shankar disagreed, saying that the exception doesn’t violate Articles 14, 19, and 21. Both the judges were not on the same platform in their decision.
The petitions, filed in 2015, challenge an exception under rape laws that protects men who have non-consensual sex with their wives from criminal prosecution if the woman is not a minor, or over 18.
Justice Shakdher said the exception violated Articles 14, 19, and 21 of the Constitution dealing with the Right to Equality, Freedom of Speech and Expression, and Protection of Life and Personal Liberty.
“I have not been able to agree with my learned brother,” said Justice Shankar.
The courts, he said, cannot substitute their subjective value judgement for the view of the democratically-elected legislature and the exception “was based on marriage as intelligible criteria”.
In the end, both the judges agreed to grant a certificate of leave to appeal before the Supreme Court as the matter involves substantial questions of law. The petitions seeking the criminalisation of marital rape were pending before the court since 2015 and 2017. The RIT Foundation and the All India Democratic Women’s Association were the principal petitioners before the court.
The judges had reserved a judgement on February 21 after marathon hearings on the rape law and the exception for marital rape.
A “holistic view” had to be taken on marital rape, Solicitor General Tushar Mehta told the court.
“A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape,” the order stated, adding that the legislature must consider making marital rape a crime.