Delhi Court Gives Split Verdict On Criminalising Martial Rape.

The Delhi High Court on Wednesday delivered a split verdict on the criminalisation of marital rape with one of the judges favouring striking down the provision, the other holding it was not unconstitutional.

The petitions challenged the constitutional validity of the exception in the Indian Penal Code (IPC) that exempts men from being prosecuted for marital rape.

Justice Shakdher held that the exception to Section 375 of the IPC, which exempts the husband from being prosecuted for rape, is unconstitutional.

Justice Shankar, on the other hand, said he does not agree with Justice Shakdher, and ruled that the exception is based on “intelligible differentia”.

The judgment came on petitions filed by two NGOs, the RIT Foundation and the All India Democratic Women’s Association, as well as two individuals, which challenged the constitutional validity of the second exception to Section 375 of the IPC. 

Section 375 of the IPC defines the offence of rape, but carves out an exception for sexual intercourse between a married couple. “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,” the exception reads. 

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”.

In its 2017 affidavit, the Centre had opposed the pleas, saying that marital rape cannot 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.

Karuna Nundy, one of the lawyers fighting to criminalise marital rape, says will move the Supreme Court.