New Delhi: The Delhi High Court on Wednesday delivered a 1:1 split verdict on pleas seeking criminalisation of marital rape and doing away with the exception in rape laws that insulate husbands, and said that the matter will have to be considered by Supreme Court.
The two-judge bench of justices Rajiv Shakdher and C Hari Shankar expressed different opinions on the issue of whether the exception granted to sexual acts by a husband on his wife can be considered valid under the Constitution.
Justice Shakdher felt the exception is violative of Article 14 of the Constitution, which provides for equality and equal protection of the laws.
“As far as I am concerned, the impugned provisions — exception 2 to section 375 and section 376 (E)… are violative of Articles 14, 15, 19(1) (A) and 21 of the Constitution and are hence struck down… Courts cannot substitute their subjective value judgment for the view of the democratically elected legislature and the exception is based on an intelligible differentia,” Justice Shakdher said.
Justice Hari Shankar, however, said it does not violate any law and can continue.
“There is no support available, either statutory or precedential that every act of unconsensual sex by a man on his wife is rape. The impugned provision does not violate Article 14, but is based on an intelligible differentia having a rationale nexus… The impugned exception (375) does not violate article 21, 19(1)A… it cannot be called unconstitutional and therefore can exist… and, in such circumstances, the court cannot substitute its subjective values… for the view of the democratic elected legislature. I am of the considered opinion that the challenge of the petitioner cannot sustain,” Justice Hari Shankar stated.
Noting that the issue involves a “substantial question of law”, the judges said it would have to be considered by the Supreme Court. They also observed that at least two high courts have given their ruling on the matter.
Also Read: Marital Rape: Marriage Not A License To Unleash Brutal Beast, Rules High Court
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The Delhi HC has granted leave to appeal before the Supreme court, which means that the petitioners and the central government are both free to approach the apex court on the issue.
