Delhi High Court issues a divided decision on petitions to criminalize marital rape

11 May, 2022 | Riya Girdhar

The Centre told the court in February that the matter involves a socio-legal impact and close family relationships that cannot be determined solely on the basis of legal considerations.

On Wednesday, the Delhi high court issued a divided decision on petitions to criminalise marital rape and eliminate the provision in rape laws that protects husbands. Both justices said the issue contains a constitutional concern and allowed the parties to appeal to the Supreme Court.

The exception, according to Justice Rajiv Shakdher, is in violation of Article 14 of the Constitution, which guarantees equality and equal protection under the law.

However, Justice C Hari Shankar stated that it does not break any laws and that it can continue.

“The challenged provisions — exception 2 to section 375 and section 376 (E) — are, in my opinion, in violation of Articles 14, 15, 19(1) (A), and 21 of the Constitution, and are thus stricken down.

“Courts cannot substitute their subjective value judgement for the democratically elected legislature’s position, and the exception is founded on an understandable differenceia,” “According to Justice Shakdher.

“There is no support available, either statutory or precedential that every act of unconsensual sex by a man on his wife is rape. The impugned provision does not violate Article 14, but is based on an intelligible differentia having a rationale nexus… The impugned exception (375) does not violate article 21, 19(1)A… it cannot be called unconstitutional and therefore can exist… and, in such circumstances, the court cannot substitute its subjective values… for the view of the democratic elected legislature. I am of the considered opinion that the challenge of the petitioner cannot sustain,” C Hari Shankar, a judge, disagreed.

The Indian Penal Code’s Section 375, Exception 2, decriminalises marital rape. Sexual intercourse between a man and his wife (under the age of 15) is not considered rape, according to the law.

The high court delayed its decision on February 21 following marathon hearings on petitions submitted in 2015 by the RIT Foundation, the All India Democratic Women’s Association, and two individuals, alleging that the exception discriminated against married women sexually abused by their husbands.

The court refused to grant the Centre further time, stating that it was irrelevant. The court stated that it will assess the Centre’s position from 2017.

In 2017, the Centre argued that India could not simply follow the West and criminalise marital rape because “many variables” must be considered. The administration informed the court in January that marital rape could not be criminalised until it finished consulting with stakeholders.