The Delhi High Court on Wednesday delivered a split verdict on petitions seeking criminalisation of marital rape.
Justice Rajiv Shakdher held that Exception 2 in the rape law under Section 375 of the Indian Penal Code is “unconstitutional.” 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. 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).
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.