Criminalisation of marital rape: Delhi High Court delivers split verdict, here’s what the 2-judge bench said

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New Delhi: Delivering a split verdict on the matter of criminalisation of marital rape, the Delhi High Court on Wednesday (May 11) granted leave to the parties to file an appeal before the apex court. 

A two-member bench pronounced a split verdict with Justice Rajiv Shakdher, who headed the division bench, in favour of criminalising marital rape and Justice C Hari Shankar holding a contrary view and observing that the exception under the IPC is not “unconstitutional and was based on an intelligible differentia”, PTI reported. 

Justice Shakdher said delivering the verdict, "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."

However, disagreeing with Shakdher, Justice Shankar said "I have not been able to agree with my learned brother" and said that these provisions do not violate Articles 14, 19 (1) (A), and 21 of the Constitution.

Criminalising of marital rape | According to the order passed by Justice Rajiv Shakdher, husbands can be held criminally liable for sexual relations without the consent of the wife while Justice C Harishankar showed disagreement with this view. — ANI (@ANI) May 11, 2022

The petitioners have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape)-- which states sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape–  arguing that it discriminates against married women whose husbands sexually assault them.

Earlier in February, the Central government had sought more time from the court to put out its stand on the issue following a consultative process. The Delhi High court had rejected the request, stating that it was impossible to endlessly defer an ongoing matter.

Notably, 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 lead to easy harassment of husbands. 

(With agency inputs)