New Delhi | Jagran News Desk: The Delhi High Court Wednesday delivered a split verdict on the issue of criminalisation of marital rape with one of the judges favouring striking down the provision, the other holding it was not unconstitutional. The division bench of the Delhi High Court comprising Justice Rajiv Shakdher and Justice Hari Shankar, meanwhile, granted leave to the parties to file an appeal before the Supreme Court. 

While Justice Rajiv Shakdher ruled in favour of criminalising marital rape, Justice Hari Shankar held that exception 2 to Section 375 of the Indian Penal Code (IPC) does not violate the Constitution as it is based on intelligible differences. "Husbands can be held criminally liable for sexual relations without the consent of the wife", the order by Justice Rajiv Shakder stated.  

The Delhi High Court was hearing the petitions challenging the constitutionality of the marital rape exception under Section 375 of the 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, is not 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 its 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.

 

(With Agency Inputs)

Posted By: Talibuddin Khan