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Delhi HC Delivers Split Verdict On Marital Rape: One Judge Calls It Unconstitutional, Other Disagrees

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Ever since the beginning of 2022, marital rape has been a hot topic of conversation among people since while the Delhi High Court was hearing a plea against the Exception 2 of Section 375 of the IPC that protects men from being charged with rape for having non-consensual sexual intercourse with their wives. The plea was being heard by a bench of Justices Rajiv Shakdher and C Hari Shankar. After mulling over the verdict, the Delhi High Court has finally delivered a judgement in the case and it happens to be a split verdict. While Justice Rajiv Shakdher struck down the exception, Justice C Hari Shankar disagreed and stated that the exception is not violative of Articles 14, 19 and 21.

Delivering the judgement on the petitions filed against marital rape filed by NGOs RIT Foundation and All India Democratic Women’s Association and two others, the Delhi High Court disagreed and issued a split verdict. Justice Shakdher noted that the Exception 2 of Section 375 is violative of Article 14 of the Indian Constitution and struck it down. On the hand, Justice Shankar held that the does not agree while adding that there has been no support to tho show that the impugned section violates Articles 14, 19 and 21. “There is an intelligible differentia. I am of the view that the challenge cannot sustain,” said Justice Shankar as per LiveLaw. Both the judges have granted a certificate of leave to appeal before the Supreme Court stating that there are substantial questions of law involved in this case. This verdict comes after the bench of the Delhi High Court had earlier reserved the order in the case of February 21.

Also Read: Hautetalk: Marriage Cannot Take Away A Woman’s Right To Say ‘No’. Criminalising Marital Rape Is The Need Of The Hour

For the unversed, these petitions seeking the criminalisation of marital rape have been pending in the court since 1015 and 2017. Earlier in February, before reserving the order the Delhi High Court had rejected the Centre’s request seeking more time to respond to the petitions. In 2022, the Centre did not make any oral submissions or arguments and had instead told the court to treat its written stand of 2017 as its final stand on the matter as the government wants to hold a consultation with the stakeholder before sharing a fresh stand. Dismissing the idea of considering the 2017 submission as final. the court gave the government more time for consultation. Senior Advocates Rebecca John and Rajshekhar Rao were appointed at amici curiae in the matter by the court. Advocate Rebecca John had called the Exception a colonial legacy and said that by striking down the exception, the court will uphold a woman’s right to bodily autonomy. On the other hand, Senior Advocate Rajshekhar Rao had argued that the provision denies women the right to call rape, a rape.

Also Read: Karnataka High Court Terms Marital Rape Exception Regressive, Says “Brutal Acts Of Sexual Assault On Wife By The Husband Is Rape”

FYI, in 2017 the Centre had submitted that striking down the exception to the law will not only “destabilise the institution of marriage” but it will also make it easy for women to harass their husbands. It had also cited the rising misuse of Section 498A of the IPC.

Marital Rape: Smriti Irani Says Not All Marriages Violent, Not All Men Rapists. We Think The WCD Minister Is Missing The Point


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