Delhi HC passes split verdict on marital rape criminalisation case

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Justice Shakdher stated that the exemption of the husband from the offence of marital rape is unconstitutional while Justice Hari Shankar said he does not agree with Shakdher…reports Asian Lite News

The Delhi High Court on Wednesday delivered a split verdict in the marital rape criminalisation case, which challenged the exception to Section 375 of the Indian Penal Code.

A bench of Justice Rajiv Shakdher and Justice C. Hari Shankar expressed different opinions in the judgement on the exception to Section 375 of the IPC, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

Justice Shakdher stated that the exemption of the husband from the offence of marital rape is unconstitutional while Justice Hari Shankar said he does not agree with Shakdher.

“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 struckdown,” said Justice Shakder. A detailed judgement on the matter will be made available later in the day.

On February 21, the same bench had reserved its judgment on a batch of petitions seeking criminilisation ‘marital rape’ and challenging the exception to Section 375 of the Indian Penal Code.

Solicitor General Tushar Mehta, who appeared on behalf of the Centre, submitted that considering the far-reaching consequences, it has sent a communication to all states and union territories asking their comments on the issue and urged the court that the proceedings be adjourned till the time the inputs are received. However, the bench refused to grant further time to the Centre to make its stand clear on the issue.

“We have indicated during the course of hearing to Mehta that it is not possible to adjourn an ongoing matter as there is no terminal date by when the Centre’s consultations will be over on the issue. Since counsel for the parties have addressed arguments, judgment is reserved,” the court said.

On February 7, the High Court had sought the Centre’s stand on the issue following the submission of the Solicitor General, who has said that a “holistic view” has to be taken on criminalising marital rape, which is a sensitive “socio-legal” issue, and requested for deferring further hearing was not unjustifiable.

Recently, the Centre in a fresh affidavit in the High Court, in response to the clutch of petitions to criminalise marital rape, maintained that it was examining the issue of broad changes in criminal law of the country and that the petitioner could also give their suggestions to the competent authorities.

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