Delhi high court delivers split verdict on pleas to criminalise marital rape

The Centre in February told the court the issue involves a socio-legal impact and intimate family relations that cannot be judged on the basis of some arguments by lawyers

The Delhi high court on Wednesday gave a split judgment on pleas seeking to criminalise marital rape and do away with the exception in rape laws that insulate husbands. Both judges granted liberty to the parties to move the Supreme Court, saying that the case involves a question of constitutional law.

Justice Rajiv Shakdher said the exception is violative of the Constitution’s Article 14, which provides for equality and equal protection of the laws. Justice C Hari Shankar, however, said it does not violate any law and can continue.

“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.” Courts cannot substitute their subjective value judgment for the view of the democratically elected legislature and the exception is based on an intelligible differentia,” Justice Shakdher said.

“There is no support available, either statutory or precedential that every act of unconsensual sex by a man on his wife is rape. The impugned provision does not violate Article 14, but is based on an intelligible differentia having a rationale nexus… The impugned exception (375) does not violate article 21, 19(1)A… it cannot be called unconstitutional and therefore can exist… and, in such circumstances, the court cannot substitute its subjective values… for the view of the democratic elected legislature. I am of the considered opinion that the challenge of the petitioner cannot sustain,” Justice C Hari Shankar differed.

Exception 2 of the Indian Penal Code’s Section 375 decriminalises marital rape. It says sexual intercourse between a man and his wife (not under 15) is not rape.

On February 21, the high court reserved its judgment after marathon hearings on pleas by the NGO RIT Foundation, All India Democratic Women’s Association, and two individuals, filed in 2015 and seeking to strike down the exception on grounds it discriminated against married women sexually assaulted by their husbands. 

The court refused to give further time to the Centre saying it was neither here nor there. The court said it would take into consideration the Centre’s 2017 stance.

In 2017, the Centre opposed the pleas saying India cannot blindly follow the West and criminalise marital rape as ‘several factors’ have to be taken into account. In January, the government told the court that marital rape cannot be criminalised until its consultation with stakeholders is complete.

Union minister Smriti Irani in February told Parliament the protection of women and children is a priority but condemning every marriage as violent and every man rapist is not advisable. She was responding to Communist Party of India member Binoy Viswam’s query on marital rape.

The Centre on February 3 told the high court the issue of criminalising marital rape involves a socio-legal impact and intimate family relations that cannot be judged on the basis of some arguments by lawyers. It added a “comprehensive approach” is required rather than a strictly legal view to come to a conclusion.

On February 7, the court granted two weeks to the Centre to take a consultative stand on the issue. But the Centre’s stand remained in limbo.

Advocate Karuna Nundy, who appeared for one of the petitioners, told the court on January 31 that criminalising marital rape is about respecting the right of a wife to say no. “This case is about the moral right of a married woman to refuse unwanted forcible sexual intercourse. It is about respecting the right of a wife to say no and recognising that marriage is no longer a universal licence to ignore consent. The normative force of a judgment of this court will go a long way to realising our long-cherished constitutional goal of equal respect and dignity to all.”

Senior advocate Rebecca John, the amicus curiae in the matter, told the court the exception in the rape law must be viewed as an “instrument of oppression”. She said the court will uphold the bodily integrity of women by striking down the exception.

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