Delhi HC delivers split verdict on criminalisation of marital rape

Delhi HC delivers split verdict on criminalisation of marital rape

India News


The Delhi High Court on Wednesday delivered a split verdict on petitions seeking criminalisation of marital rape. While Justice Rajiv Shakdher struck down the 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 Article 14, 19 and 21.

Both the judges however agreed to grant certificate of leave to appeal before the Supreme Court as the matter involves substantial questions of law. The petitions seeking criminalisation of marital rape were pending before the court since 2015 and 2017. RIT Foundation and All India Democratic Women’s Association were the principal petitioners before the court.

While rejecting Centre’s request for more time to respond afresh to the petitions, the court had reserved its verdict in the case on February 21.

The Centre, which did not make any oral arguments in the case this year, had told the court that its written stand of 2017 should not be treated as final as it wants to hold consultations with stakeholders on the subject first. However, the division bench had said that it cannot “let the matter hang like this” and told the government that its consultation process can go on.

The court on February 7 had granted two weeks to the Centre to clarify its stand in the matter which has remained pending since 2015. Though the government had replied to and opposed the petitions in 2017, it asked the court  in January to defer the proceedings in the case to await the outcome of its consultation on the subject with states and other stakeholders. The government had said it wants to place a fresh stand on record before the court after holding consultations.

The court between January 7 and February 21 on 23 dates heard the petitions challenging the Exception 2 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under Section 376 of the IPC. The arguments on behalf of the petitioners, the intervenors opposing the pleas and the submissions of amicus curiae were heard by the bench.

Undertaking to provide a time-bound schedule within which it will carry out the consultative process on the issue, the Centre had said that the matter has been pending since 2015 and if the court waits for such “fruitful exercise” for some time, no prejudice would be caused and that it will be possible for the government to assist the court meaningfully.

Stating that what “may appear to be marital rape” to a wife “may not appear so to others”, the central government in 2017 had submitted that striking down the exception “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. It had also cited the “rising misuse of Section 498A of IPC”— cruelty by husband or husband’s relative against a woman – to show how laws dealing with violence against women can be misused “for harassing the husbands”.

Terming the Exception 2 of IPC 375 a colonial legacy and an exemption from criminal prosecution, Senior Advocate Rebecca John, an amicus curiae in the case in January had contended that the court will be upholding the bodily integrity of women by striking it down and putting the people to notice that a marital partner’s non-consent must be respected. Senior Advocate Rajshekhar Rao, another amicus curiae in the case had argued that every day the provision remains on statute books, women are denied the ability to call a rape a rape.





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