Marital rape law: Why petitioners challenged exception under IPC in Delhi HC

Updated on May 11, 2022 03:51 PM IST

On Wednesday, Justice Rajiv Shakdher favoured striking down the marital rape exception, while Justice C Hari Shankar said the exception under the IPC is not unconstitutional and was based on an intelligible differentia.

The Delhi High Court delivers a split verdict on the issue of criminalisation of marital rape.(File)
The Delhi High Court delivers a split verdict on the issue of criminalisation of marital rape.(File)
By | Written by Aniruddha Dhar, New Delhi

The Delhi High Court on Wednesday delivered a split verdict on the issue of criminalisation of marital rape and granted liberty to the petitioners to move the Supreme Court on this matter.

Justice Rajiv Shakdher, who headed the division bench, favoured striking down the marital rape exception, while Justice C Hari Shankar said the exception under the IPC is not unconstitutional and was based on an intelligible differentia.

The court was hearing petitions filed 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.

What is the matter?

The petitioners have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground 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 petitioners had said marital rape was the biggest form of sexual violence against women and the Delhi government had said this act was already covered as a "crime of cruelty" under the IPC.

The challenge

NGO, Men Welfare Trust (MWT), which is opposing the petitions, had argued that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.

Previous hearings

On February 21, the bench had reserved its judgment after conducting marathon hearings on the issue.

On February 7, the high court granted two weeks to the Centre to state its stand on the petitions.

Centre's response

The Centre had submitted that it has sent a communication to all states and union territories seeking their comments on the issue and urged the court that the proceedings be adjourned till such time the inputs are received.

Solicitor General Tushar Mehta and Central government standing counsel Monika Arora, representing the Centre, had said as this case could have an impact on social and family life with far-reaching consequences, the government can place its stand only after a consultative process.

In Parliament on February 2, Smriti Irani, minister of women and child development, responding to Communist Party of India member of Parliament Binoy Viswam’s question on marital rape, said the protection of women and children is a priority, but condemning every marriage as violent and every man a rapist is not advisable.

(With inputs from PTI, ANI)

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