The Delhi High Court on Wednesday (May 11) 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 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, 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.
Chronology of events on marital rape exception in criminal law
The Delhi High Court Wednesday delivered a split verdict on the issue:
*1860: The Indian Penal Code (IPC) comes into force with the marital rape exception being applicable to women above 10 years of age.
*1940: IPC is amended and the marital rape exception is made available to women above 15 years of age.
*Jan 11, 2016: Delhi HC issues notice to Centre and seeks its stand on the first petition challenging marital rape exception in IPC.
* Aug 29, 2017: Centre tells HC that marital rape cannot be made a criminal offence as it might destabilise the institution of marriage.
* Oct 11, 2017: Supreme Court reads down the marital rape exception and rules that sexual intercourse by a man with his wife, the wife not being under eighteen years of age, is not rape.
Earlier, exception 2 to section 375 stated that sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.
* Jan 18, 2018: Delhi government tells HC marital rape is already an offence of cruelty under the law and a woman is entitled to refuse sexual relations with her husband.
* Jan 7, 2022: HC begins day-to-day hearings on the petitions seeking criminalisation of marital rape.
* Jan 13: Centre tells HC it is already seized of the matter and was considering a constructive approach to the issue of criminalising marital rape and has sought suggestions from stakeholders including state governments and union territories.
* Jan 17: HC asks Centre to clarify its in-principle position after time is sought to formulate and place its considered stand.
* Jan 24: Centre urged HC to grant it a reasonable time to place its position, says criminalisation of marital rape involves issues that cannot be looked at from a microscopic angle.
* Jan 28: HC asks Centre to inform whether it wishes to withdraw its 2017 affidavit which said that marital rape cannot be made a criminal offence.
* Feb 1: Centre tells HC it is re-looking at its earlier stand which was brought on record by way of an affidavit filed several years ago and sought time to state its stand.
* Feb 3: Centre urges HC to defer hearing on pleas to criminalise marital rape and said it will provide a time-bound schedule within which it will carry out an effective consultative process on the issue.
* Feb 7: HC grants two weeks to the Centre to state its stand on the petitions.
* Feb 21: HC reserves verdict on petitions, refuses to grant more time to Centre saying it was not possible to adjourn an ongoing matter as there is no definite date by when the government’s consultations would be over on the issue.
* May 11: HC delivers a split verdict on the issue of criminalisation of marital rape and granted leave to the parties to file an appeal before the Supreme Court.