The Supreme Court on Friday sought the Union government’s stand on an appeal against a split verdict of the Delhi High Court on the criminalisation of marital rape, Live Law reported.
A Supreme Court bench comprising Justices Ajay Rastogi and BV Nagarathna issued notices to the respondents on the appeal.
The bench agreed to hear the case in February 2023 and clubbed all pending matters about marital rape together.
On May 11, Justices C Hari Shankar and Rajiv Shakdher of the High Court had passed a split verdict on a batch of petitions seeking to do away with Exception 2 of the rape law under Section 375 of the Indian Penal Code. 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.
Justice Shakdher had held that the exception was unconstitutional.
“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,” he wrote in his judgement.
Justice Shankar, however, disagreed and had said in his verdict that the exception to the rape law did not violate the constitutional rights pertaining to equality before law, freedom of speech as well as life and liberty.
Khushboo Saifi, who was one of the petitioners in the Delhi High Court, filed an appeal before the Supreme Court. She supported the verdict by Justice Shakdher and challenged Justice Shankar’s views.
In an affidavit filed on January 12, the Centre had told the High Court that criminalisation of marital rape “could open floodgates of false cases being made with ulterior motives”.
In response to the Centre’s stand, 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.