Delhi high court delivers split verdict on pleas to criminalise marital rape

New Delhi: The Delhi high court on Wednesday gave a split judgment on pleas seeking to criminalise marital rape and to do away with the exception in the rape laws that insulate husbands while referring the matter to the Supreme Court.

Justice Rajiv Shakdher said the exception is violative of the Constitution’s Article 14, which provides for equality and equal protection of the laws. Justice C Hari Shankar said that the provision does not violate any law and would continue to exist.

Exception 2 of the Indian Penal Code’s Section 375 decriminalises marital rape. It says sexual intercourse by a man with his wife, who is not under 15, is not rape.

On February 21, the high court reserved its judgment after marathon hearings on the pleas NGO RIT Foundation, All India Democratic Women’s Association, and two individuals filed in 2015 seeking to strike down the exception on the grounds that it discriminated against married women sexually assaulted by their husbands. The court refused to give further time to the Centre saying it was neither here nor there. The court said it would take into consideration the Centre’s 2017 stance.

In 2017, the Centre opposed the pleas saying India cannot blindly follow the West and criminalise marital rape as “several factors” have to be taken into account. In January, the government told the court that marital rape cannot be criminalised until its consultation with stakeholders is complete.

Union minister Smriti Irani in February told Parliament the protection of women and children is a priority but condemning every marriage as violent and every man rapist is not advisable. She was responding to Communist Party of India member Binoy Viswam’s query on marital rape.

The Centre on February 3 told the high court the issue of criminalising marital rape involves a socio-legal impact and intimate family relations that cannot be judged on the basis of some arguments by lawyers. It added a “comprehensive approach” is required rather than a strictly legal view to come to a conclusion.

On February 7, the court granted two weeks to the Centre to take a consultative stand on the issue. But the Centre’s stand remained in limbo.

Advocate Karuna Nundy, who appeared for one of the petitioners, told the court on January 31 that criminalising marital rape is about respecting the right of a wife to say no. “This case is about the moral right of a married woman to refuse unwanted forcible sexual intercourse. It is about respecting the right of a wife to say no and recognising that marriage is no longer a universal licence to ignore consent. The normative force of a judgment of this court will go a long way to realising our long-cherished constitutional goal of equal respect and dignity to all.”

Senior advocate Rebecca John, the amicus curiae in the matter, told the court the exception in the rape law must be viewed as an “instrument of oppression”. She said the court will uphold the bodily integrity of women by striking down the exception.