Criminalising marital rape: Delhi High Court delivers split verdict

Exception 2 of IPC Section 375 says that a rape charge cannot be filed against a man who has non-consensual sex with his wife

The Delhi High Court's divisional Bench on Wednesday delivered a split verdict in the marital rape case regarding the validity of Exception 2 to Section 375 of the Indian Penal Code (IPC).

The exception says that a rape charge cannot be filed against a man who has non-consensual sex with his wife.

This very exception and its validity was challenged before the Delhi High Court.

The verdicts of the two judges -- Justices Rajiv Shakdher and C Hari Shankar -- differed on the matter. While Justice Shakdher struck down the provision as unconstitutional, Justice Shankar upheld it.

The High Court had also appointed Senior Advocates Rebecca John and Rajshekhar Rao as amici curiae (impartial advisors to the court of law) in the matter.

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 could not 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.