Appeal Filed in SC After Delhi HC's Split Verdict on Criminalising Marital Rape

The Delhi high court had heard a batch of petitions challenging the exception in the law that exempts husbands from being prosecuted for non-consensual sexual intercourse with their wives.  

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New Delhi: An appeal has been filed in the Supreme Court challenging the Delhi high court’s split verdict on the issue of criminalisation of marital rape on a batch of petitions challenging the exception in the law that exempts husbands from being prosecuted for non-consensual sexual intercourse with their wives.

The appeal has been filed by Khushboo Saifi, one of the petitioners before the high court.

The high court, on May 11, had delivered a split verdict on the issue.

However, both the judges – Justice Rajiv Shakdher and Justice C. Hari Shankar – on the bench concurred with each other for granting a certificate of leave to appeal to the Supreme Court in the matter as it involved substantial questions of law which required a decision from the top court.

While Justice Shakdher, who headed the division bench, favoured striking down the marital rape exception for being “unconstitutional” and said it would be “tragic if a married woman’s call for justice is not heard even after 162 years” since the enactment of the IPC, Justice Shankar said the exception under the rape law is not “unconstitutional and was based on an intelligible differentia”.

Also read: Delhi HC Bench Delivers Split Verdict on Criminalising Marital Rape

The petitioners had challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on grounds 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.

The bench delivered a 393-page split verdict in the matter.

Justice Shakdher, in the 192 pages penned by him, regretted that he was not able to persuade Justice Shankar to his point of view and said he, perhaps, “hears a beat of a different drummer. I respect that.”

“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, struck down,” Justice Shakdher had held, according to Bar and Bench.

Justice Shankar, who gave dissenting views in 200 pages written by him, said the challenge to the vires of the second exception to Section 375 and Section 376B of the IPC and Section 198B of the Code of Criminal Procedure, as raised in these petitions, must fail.

“I do not agree. There is no support to show that impugned exception violates Articles 14, 19 or 21. There is an intelligible differentia. I am of the view that the challenge cannot sustain,” Justice Shankar had ruled.

He said it remained a matter of lasting regret that their differences, regarding the outcome of these proceedings, appear irreconcilable.

Justice Shakdher also said, “to the petitioners and their ilk I would say it may seem that you plough a lonely furrow today but it will change, if not now, someday. To the naysayers, I would say that every dissent adds flavour and acuteness to the debate at hand, which assists the next court, if nothing else, in arriving at a conclusion which is closer to justice and truth.”

The court’s verdict came on PILs filed in 2015 and 2017 by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.

(With PTI inputs)