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Split views: What Delhi High Court judges said on marital rape

A bench of Justice Rajiv Shakdher and Justice C Hari Shankar delivered a split verdict on petitions seeking criminalisation of marital rape.

Published: 12th May 2022 07:18 AM  |   Last Updated: 12th May 2022 07:18 AM   |  A+A-

Delhi High Court (File Photo | Shekhar Yadav, EPS)

Delhi High Court (File Photo | Shekhar Yadav, EPS)

Express News Service

NEW DELHI:  In a tongue in cheek comment, while delivering the verdict in marital rape case, Justice Rajiv Shakdher said in the court order that he could not persuade Justice C Hari Shankar to his point of view and that perhaps he “hears a beat of a different drummer”. 

A bench of Justice Rajiv Shakdher and Justice C Hari Shankar delivered a split verdict on petitions seeking criminalisation of marital rape. While Justice Rajiv Shakdher struck down the Exception 2 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under Section 376 IPC, Justice C Hari Shankar disagreed saying that the exception doesn’t violate Article 14, 19 and 21.

Justice Rajiv Shakdher placed on record his appreciation for Petitioners and their counsels including senior Colin Gonsalves, Karuna Nundy and others. “The wealth of material that they placed before us in the form of reports and judgments helped me in finding what I believe is the right conclusion in the matter. Regrettably, I was not able to persuade Hon’ble Mr Justice C Hari Shankar to my point of view. He, perhaps, hears a beat of a different drummer. I respect that,” said Justice Shakdher. 

Justice Shakder stated that a married woman’s right to bring the offending husband to justice needs to be recognised. “...Deifying women has no meaning if they are not empowered. It is time that all stakeholders bite the bullet. It would be tragic if a married woman’s call for justice is not heard even after 162 years, since the enactment of IPC”. 

Both the justices agreed to grant a certificate of leave to appeal before the SC. Meanwhile, Justice C Hari Shankar stated that the petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available.

“The impugned Exception does not violate Article 14, but is based on an intelligible differentia having a rational nexus with the object both of the impugned Exception as well as Section 375 itself. I am of the considered opinion that the challenge, by the petitioners, to the constitutional validity of Exception 2 to Section 375 of the Constitution, cannot sustain,” he said.

Timeline of key rulings

1860: Indian Penal Code (IPC) comes into force with the marital rape exception being applicable to women above 10 years of age.

1940: IPC is amended and the marital rape exception is made available to women above 15 years of age.
2015: A bunch of PILs urged the Delhi High Court to strike down the exception on the grounds that it discriminated against married women.

Aug 29, 2017: Centre files it’s response in the High Court that it must be ensured marital rape does not destabilize the institution of marriage.

Oct 11, 2017: Supreme Court amends the marital rape exception and rules that sexual intercourse by a man with his wife, the wife not being under eighteen years of age, is not rape.

Jan 7, 2022: The High Court begins day-to-day hearings on the petitions seeking criminalisation of marital rape.

Jan 13: Centre tells High Court it is “already seized of the matter” and was considering a “constructive approach” to the issue of criminalising marital rape and has sought suggestions from stakeholders including state governments and union territories.

Jan 17: High Court asks Centre to clarify its in-principle position after time is sought to formulate and place its “considered stand”.

Jan 24: Centre urged before High Court to grant it a “reasonable time” to place its position, says criminalisation of marital rape involves issues that cannot be looked at from a “microscopic angle.”

Jan 28: High Court asks Centre to inform whether it wishes to withdraw its 2017 affidavit which said that marital rape cannot be made a criminal offence.

Feb 1: Centre tells High Court it is “re-looking” at its earlier stand which was brought on record by way of an affidavit filed several years ago and sought time to state its stand.

Feb 3: Central government urges High Court to defer hearing on pleas to criminalise marital rape and said it will provide a time-bound schedule within which it will carry out an effective consultative process on the issue.

Feb 7: Delhi High Court grants two weeks to the Centre to state its stand on the petitions.

Feb 21: High Court reserves verdict on petitions, refuses to grant more time to Centre saying it was not possible to adjourn an ongoing matter as there is no definite date by when the government’s consultations would be over on the issue.

May 11: High Court delivers a split verdict on the issue of criminalisation of marital rape and granted leave to the parties to file an appeal before the Supreme Court.



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