The Delhi High Court on Wednesday, May 11, delivered a split verdict on the criminalisation of marital rape. While Justice Rajiv Shakdher held the exception granted to husbands from the offence of rape as unconstitutional, Justice Hari Shankar disagreed. Justice Shakdher said that the provisions that grant an exception to husbands having intercourse with their wives without the latter’s consent are violative of Article 14 (right to equality) and should be struck down. However, Justice C Hari Shankar said that the exception under the Indian Penal Code is not unconstitutional and was based on an intelligible differentia (a difference or discrepancy that can be understood).
The court was hearing pleas challenging the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands. Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape. Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.
The high court was hearing the pleas filed by NGOs RIT Foundation, All India Democratic Women's Association and two citizens, who have sought the striking down of the exception in the Indian penal law that did not consider sexual intercourse with a wife, not less than 15 years of age, as rape. It had earlier allowed two intervention applications, one in support of pleas to make marital rape an offence and the other opposing it.
The Union government had opposed the main petitions saying marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands.
The government, in an affidavit filed through central government standing counsel Monika Arora and Kushal Kumar, has said the Supreme Court and various High Courts have already observed the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
Earlier, the government had defended its legislation saying child marriages were taking place in India and the decision to retain a girl's minimum age as 15 years to marry was taken under the amended rape law to protect a couple against the criminalisation of their sexual activity.
With PTI inputs