Marital rape: Delhi High Court delivers split verdict

The Delhi High Court on Wednesday gave a split judgement in a batch of matters challenging the validity of Exception 2 of Section 375 Indian Penal Code (IPC) which decriminalises marital rape.

Justice Rajiv Shakdher struck down the provision of exempts husband from the offence of rape for forcible sex with his wife as unconstitutional.

Justice C Hari Shankar, however, differed with him, saying that exception was based on intelligible differentia and was not unconstitutional.

After pronouncing their respective judgements, both the judges allowed filing of appeal in the Supreme Court as the matter related to substantial question of law.

Notably, just a day ago, the Supreme Court had decided to examine a plea against the Karnataka High Court's judgement which held that a brutal act of sexual assault against a woman, albeit by her husband, cannot but be termed as rape.

In its March 23, 2022 judgement, the Karnataka High Court's single judge bench had said the Exception granted to husband under Section 375 of the IPC cannot be absolute.

Also Read — Rape is rape, even when done by husband: Karnataka HC

Acting on a batch of writ petitions, the Delhi High Court had in February reserved the judgement, after 20 days of marathon hearings, even though the Centre had refused to take a clear cut stand until it consulted all stakeholders, including States and the National Commission for Women.

Amid a demand from lawyers, activists, politicians and citizens for criminalising marital rape here, the Union government has maintained that this will involve a socio-legal impact, including on intimate family relations, and would require a comprehensive approach rather than a strictly legal view.

The Union government also said the matter is essentially a legislative function.

The Centre also said it awaited responses from States and Union Territories on the issue.

NGOs RIT Foundation and All India Democratic Women's Association, and Khusboo Saifi and Farhan, in their plea, contended irrespective of marital status, every women has a right to say 'no' to non-consensual sexual act. Men's Welfare Trust and NGO 'Hriday' opposed the plea saying it is for Parliament to take a call on the subject.

In 2017, the Supreme Court had read down an exception to Section 375 only to the extent of criminalising rape with a minor wife but clarified at the same time that it has not expressed any view on the issue of marital rape.

However, the Justice J S Verma committee, formed after 2012 Delhi gang rape case, had in 2013 recommended criminalisation of marital rape, since the state of being married does not generate automatic consent to sexual acts.