The Delhi High Court on Wednesday passed a split verdict on the criminalisation of marital rape, Live Law reported.

Justice Rajiv Shakdher held that Exception 2 in the rape law under Section 375 of the Indian Penal Code is “unconstitutional”, Live Law reported. The exception states that forcible sexual intercourse by a man with his wife is not rape unless the wife is below 15 years of age.

“The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 [right to equality] and are struck down,” held Justice Shakdher, according to Bar and Bench. He also granted leave for an appeal in the matter.

However, Justice Hari Shankar said that he does not agree with Justice Shakdher’s decision to strike down the immunity to husbands. He upheld the validity of Sections 376B (sexual intercourse by husband upon his wife during separation is punishable) and 198 B (no court shall take cognizance of an offence punishable where the persons are in a marital relationship), reported Bar and Bench.

Since January 7, a two-judge bench comprising Justices Rajiv Shakdher and C Hari Shankar has been conducting daily hearings on a batch of petitions seeking to remove Exception 2 from the rape law.

On February 21, the bench had reserved its verdict on the matter. Two non-governmental organisations RIT Foundation and All India Democratic Women’s Association – and two individuals had filed petitions on the matter.

The petitioners’ contended that the exception to marital rape is unconstitutional and should be struck down. They said it violated a married woman’s right to equality, the right to life with dignity and the right to self-expression, all of which were guaranteed under the Constitution.

Notably, the petitioners had pointed out that the provision also creates an anomaly, where slapping or killing one’s wife is criminal but not raping her.

Will approach the Supreme Court, say petitioners

In its judgement, the Delhi High Court allowed the petitioners to challenge the verdict in the Supreme Court, noting that “substantial questions of law” were involved in the matter.

Senior Advocate Karuna Nundy, who appeared for two of the petitioners, told NDTV that they will approach the Supreme Court.

“It [the law] is a blot on the face of the country,” Nundy told the news channel. “Married women should not have to say that I am forever giving away my voice, my right over my body, my right to sexual autonomy...my very core bodily integrity”.

The lawyer said that the NGOs she represented come across cases of marital rape on a daily basis and their means to redress the cases are limited since the law does not have provisions for assault in a married relationship.

“There are a huge number of cases that don’t fall within Section 354 which is sexual assault 498A [husband or relative of husband subjecting woman to cruelty]”

She added that the judgement could have been clearer had the central government taken a clear stand on the matter.

Hearings in the case

In an affidavit filed on January 12, the Centre had said that criminalisation of marital rape “could open floodgates of false cases being made with ulterior motives”. In another affidavit filed on February 3, the Centre had sought to defer the hearings, saying that it needed time to consult with all the stakeholders to be able to help the court with the case.

The government had also contended that the questions involved in the case have “far-reaching socio-legal implications” and sought to defer the matter by citing the pending consultative process. It had said that the matter needed a comprehensive approach rather than just a strictly legal view.

In an affidavit filed in the case in 2017, the government had opposed the criminalisation of marital rape, saying that it would destabilise the institution of marriage.

In response to the Centre’s affidavits, Advocate Karuna Nundy, who represented two petitioners in the case, had said that the exception pertaining to marital rape was unconstitutional as it gave primacy to the institution of marriage over the individuals in the marriage.

On Centre’s contention about considering the social problems prevalent in the Indian society, she had said: “Basically [the Centre is] saying that if you’re a poor or illiterate woman then marital rape shouldn’t be criminalised. This is the Union of India, this is the government and this is why we are before the court.”

Explainer: Why is marital rape not a crime in India – and can the courts make it one?