The Delhi High Court on Wednesday delivered a divided verdict on the issue of marital rapes or the criminalization of rape. The court said that the matter would have to be considered by the Supreme Court of India.
A bench of Justices Rajiv Shakdher and C Hari Shankar had on February 21 reserved its verdict on the petitions seeking quashing of the exemption given to husbands under the Rape Act in India after a lengthy hearing in the matter.
Justice Rajiv Shakdher and Justice C Harishankar disagreed on the issue of whether the exemption granted by a husband to his wife for sexual acts could be justified under the Constitution.
The court has now allowed appeals to the Supreme Court, noting that at least two other high courts have given their opinion on the matter.
Reading out his judgment, Justice Rajiv Shakdher said: “So far as the sexual relations between the husband and the wife are concerned, the illegal provisions are violative of Articles 14, 19, 21 and are, therefore, quashed.’
On the other hand, Justice Hari Shankar held that the exemption was based on “understandable standards” and cannot be said to be infringing on equality, liberty or right to life.
Exception 2 to section 375 (rape) of IPC does not constitute rape by a man having forcible sex with his wife, who is not less than 15 years of age. The exception to section 375 is, in simple words, the criminalization of marital rape or the rule that forcing one’s wife to have sex in marriage is not rape.
Both the judges also noted that the issue involved “an important question of law” and therefore needed to be considered by the Supreme Court.
A negotiating petition also argued for a gender-neutral definition of rape to ensure that men were not “unfairly targeted”.
At least three petitions have also been filed in the Delhi High Court by male rights groups against the punishment of marital rape on various grounds, including false allegations, the possibility of misbehaviour and marital relationship and damage to the family.
The hearing of the RIT Foundation’s petition began in 2015, with the Delhi High Court issuing notices to the Center and the Delhi government. In 2016, the Center filed an affidavit stating that marital rape cannot be criminalized as it will have a negative impact on Indian society.
In this case, the petitioners have tried to remove the exemption from the law of sexual exploitation. The petitioners have argued that this provision, apart from infringing on the right to dignity, also directly violates the right to privacy, choice and bodily autonomy recognized by the Supreme Court in its judgment on the right to privacy.
Further, it creates an ‘unfair classification’ as a married woman is denied the basic right to say ‘no’, a right available to an unmarried or divorced woman.
It was also argued that the exemption stems from the patriarchal and Victorian understanding of veil law, which states that a woman becomes the property of her husband after marriage, and that marriage is subject to ‘subject consent’.
In 2017, the central government filed an affidavit opposing the petitions filed by the petitioners, stating that marital rape cannot be made a criminal offence as it may set an example that ‘could destabilize the institution of marriage’ And there may be an easier way to upset. husband
In the written petitions filed by the Center in the Delhi High Court in January this year, the doors of litigation can be opened on criminal and false charges. She also argued that there are already several laws to protect women and there is no need to declare marital rape as an offence as the woman has resorted to the provisions of the Domestic Violence Act or the IPC on Marital Harassment. can take
The affidavit also said that India cannot “blindly imitate the West” in criminalizing marital rape as it would have “major social implications”.
However, on February 1, the Center told the High Court that it was “reconsidering” its prior position for the punishment of marital rape, as recorded in an affidavit filed several years ago. The government also said that it has started consultations with all states and various stakeholders as no position can be taken on the issue without consultation.