Breaking: Delhi High Court Passes Split Verdict On Criminalizing Marital Rape, Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional

The Delhi High Court on Wednesday passed a split verdict on a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.Justice Rajiv Shakdher has held that the exemption to the husband from the offence of marital rape is unconstitutional. Exception 2 of 375, 376B IPC was therefore struck down by him as violative of Article 14."The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 and are therefore struck down", Justice Shankdher held.However, Justice C Hari Shankar said that he does not agree with Justice Shakdher. Justice Harisankar has held that Exception 2 to Section 375 does not violate Constitution and that the exception is based on an intelligible differentia.A bench of Justice Rajiv Shakdher and Justice C Hari Shankar pronounced the judgment after reserving the orders on February 21. Both judges granted certificate to appeal to Supreme Court saying substantial questions of law are involved.Detailed copy of the judgment is awaited.The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.The Court had appointed Senior Advocates Rebecca John and Rajshekhar Rao as amici curiae in the matter. Both of them argued in favour of striking down the exception.While the Centre repeatedly requested the Court to defer the hearing saying that it is undertaking a consultative process to review the IPC provisions, the Bench refused to accept the request saying "there is no terminal date when the consultation process will get over" and proceeded to reserve judgment after hearing the parties.Solicitor General of India Tushar Mehta had apprised the Court that the Central Government was awaiting the response of other State Governments and stakeholders seeking their comments on the issue. Mehta had argued that hearing in the matter should be deferred till such time the inputs are recieved from State Governments and stakeholders.He had submitted that while the Central Government reiterated it's stand that it was committed to maintain and protect the dignity and liberty of every woman, the question involved in the petitions was not merely a constitutional question relating to regular statutes but the same had far reaching consequences.About Centre's AffidavitIn an additional affidavit filed dated February 3, 2022, the Centre had submitted that marital rape issue needed a comprehensive approach wherein a consultation process is undertaken with all stake holders including all the State Governments, rather than taking a strict legal approach.Centre had said that while it is committed towards protection of liberty, dignity and rights of every woman who is the fundamental foundation and a pillar of a civilized society, however, it has been said that the question involved in the petitions "may not be treated merely as a question concerning constitutional validity of a statutory provision as the subject matter has and will have very far reaching socio-legal implications in the country.""In the most respectful submission of the Central Government, considering the social impact involved, the intimate family relations being the subject matter and this Hon'ble Court not having the privilege of having been fully familiarised with ground realities prevailing in different parts of Society of this large, populous and diverse country, taking a decision merely based upon the arguments of few lawyers may not serve the ends of justice.""The Deponent, therefore, reiterates that the hearing be deferred providing for a stipulated time line within which the Central Government would conduct an effective consultative process after which it will be in a position to assist this Hon'ble Court."What Did the Petitioners Argue?Senior Advocate Colin Gonsalves appearing for one of the private individuals argued that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.Other petitioners namely RIT Foundation and All India Democratic Women's Association (AIDWA) represented by Advocate Karuna Nundy had argued that the marital rape exception provided under sec. 375 of Indian Penal Code violates a woman's right to dignity, personal and sexual autonomy and her right to self expression enshrined under the Constitution of India.On the aspect of marital rape exception being violative of Art. 14, it was submitted that the provision creates classification on the basis of marital status of the victims like unmarried women, live in or divorced partners, married women and married but separated women.It was added that such a classification has no reasonable nexus with the object of the statute to criminalize rape which is to prevent and punish non consensual sexual intercourse.It was also argued that non-criminalization of marital...

Breaking: Delhi High Court Passes Split Verdict On Criminalizing Marital Rape, Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional

Nupur Thapliyal

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