Delhi HC delivers a split verdict on marital rape criminalisation, Refers the matter to SC
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The Delhi High Court was unable to reach a decision regarding the criminalisation of marital rape and delivered a split verdict. The parties are free to file an appeal before the Supreme Court.
Justice Rajiv Shakdher, who headed the division bench, favoured the criminalisation and striking down the marital rape exception. However, Justice C Hari Shankar said the exception is not unconstitutional as argued by the petitioners, reported NDTV.
The bench granted a certificate to appeal to the Supreme Court saying substantial questions of law are involved in the matter.
The petition challenged the constitutionality of Section 375 of the IPC (rape) which give an exception to sexual assault done by husbands. It states that sexual acts by a man with his wife are not rape, as long as the woman is above the age of 18. The petitioner argued that it discriminated against married women who are sexually assaulted by their husbands.
The petition is filed by NGOs RIT Foundation and All India Democratic Women's Association,
On the judgement delivered on 21 February, Justice Shakdher had said when a girlfriend or live-in partner says "no", forced sex is an offence. He noted that a woman remains a woman and the relationship cannot be put on a different pedestal.
Justice Hari Shankar disagreed on the matter saying there is a qualitative difference in the sexual equation between people who were married to each other and between those who were not. He said in a marriage, there is a right to expect sexual relations from both sides. "When the parties are not married, no such right exists". He also questioned the "too much" emphasis being put on the wife's consent by the court-appointed amicus.
In February, the High Court had given the Centre two weeks to place its stand. But the government sought suspension of the hearing saying it has asked for comments from all states and Union Territories and the court waited until inputs were received. The bench refused to wait.
In 2017, the Centre had argued that criminalising marital rape will destabilise the institution of marriage and it can become an easy tool for harassing husbands.