After hearing petitions seeking the criminalisation of marital rape in India, the Delhi High Court on Wednesday gave split verdicts, while one judge ruled it to be violative of the Constitution another disagreed. The matter has now been referred to Supreme Court.
Justice Rajiv Shakdher called the exception to Section 375 unconstitutional, and Justice C Hari Shanker upheld its constitutional validity. The judges had reserved their judgements on February 21 after hearing petitions that sought to strike down the exception given to husbands under the Indian Penal Code. The Delhi High Court had given two weeks’ notice to the Central government on February 7 to confirm its stand on the matter. The Centre had then asked for more time to consider the matter but the bench had denied that request.
Delhi High Court Marital Rape Verdict After Marathon Hearings
The Centre then submitted that it had sent notices to all states and union territories to seek their comment on criminalisation of marital rape and had asked the court to delay the judgement till the inputs are received. Solicitor General Tushar Mehta and Monika Arora, the central government counsel had argued in court that the government cannot take a stand without a completion of the consultative process.
The Delhi High Court had received PIL filed by NGOs RTI Foundation, All India Democratic Women’s Association along with that of a man and women. They all had sought to strike down the exception given to husbands in rape cases. The Centre has time and again made its stand clear on the matter. In 2017, the government opposed the petitions in favour of criminalisation of marital rape and had said that if implemented, the law could destabilise the institution of marriage and husbands could be harassed. To state the obvious here would be to say that the Centre has cared more about the welfare of husbands rather than ensuring justice for martial rape survivors.
Later, the Centre told the court that it was “re-looking” at its earlier stand on the matter. The petitions were filed against the exception provided in Section 375 of Indian Penal Code, the said section lists actions against rape accused persons. The exception provided in it removes husbands as accused persons. The petitions had argued in court that the said exception discriminates against married women who are sexually assaulted by their husbands.
The exception of the said section on rape clearly states that unless the wife is a minor, sexual acts by a man with his wife is not rape. As the data from years and years can also prove, the petitions had told the court that marital rape is the most prevalent form of sexual abuse against women. The Delhi government had given its statement on the matter in court and said that the punishments against marital rape are already mentioned as a “crime of cruelty” under the Indian Penal Code.
It was pointed by an NGO in their petition that the sexual relationship between a husband and his wife cannot be compared to one shared by unmarried couples as marriage and consent cannot be separated. The petitioners had also noted that the Domestic Violence Act had come into effect after the sexual violence against spouses was recognised.
Now that the verdict by Delhi High Court did not give out any conclusion on the criminalisation of marital rape, the Supreme Court’s judgement on the same is expected to clear the picture.