New Delhi [India]: The two-judge bench of the Delhi High Court on Wednesday(May 11) delivered a split judgement on a batch of petitions seeking the criminalisation of marital rape.
The bench of Justices Rajiv Shakdher and C Hari Shankar had kept the order reserved in February earlier this year.
Justice Rajiv Shakdher ruled in favour of criminalising marital rape, while Justice C Hari Shankar disagreed with the opinion and held that Exception 2 to Section 375 does not violate the Constitution as it is based on intelligible differences.
According to the order passed by Justice Rajiv Shakdher, husbands can be held criminally liable for sexual relations without the consent of the wife. Justice Hari Shankar expressed disagreement with this view.
The high court was hearing a bunch of public interest litigations filed in 2015 by non-profit RIT Foundation, All India Democratic Women’s Association and two individuals who sought to strike down the exception in Indian rape laws on the grounds that it discriminated against married women who were sexually assaulted by their husbands.
Advocate Juhi Arora, an activist in legal issues related to women, said Delhi High Court delivered a split decision on criminalising the issue of marital rape and referred the case to the Supreme Court.
“Both Justice Rajiv Shakdher and Justice Hari Shankar have opposing views on Section 375 of the Indian Penal Code’s exception 2. On one hand, Justice Rajiv Shakdher upheld the exception given under Section 375 of the IPC as unconstitutional, on the other hand, Justice Hari Shankar is of the opinion that exception 2 of Section 375 of the IPC doesn’t violate the Constitution,” she said.
The Centre had earlier stated that considering the social impact involved, intimate family relations being the subject matter and this Court not having the privilege of being fully familiarised with ground realities prevailing in different parts of society of the large, populous and diverse country, taking a decision merely based upon the arguments of a few lawyers may not serve the ends of justice.
The Centre had also said that it is committed to fully and meaningfully protecting the liberty, dignity and rights of every woman who is the fundamental foundation and a pillar of a civilised society. The matter, therefore, needs a comprehensive approach rather than a strictly legal approach, the government had said.
In a 2017 affidavit, the Central Government opposed the plea demanding the criminalisation of marital rape. In its fresh affidavit filed on January 12, 2022, the government said they had sought suggestions from various stakeholders as the government is in the process of making comprehensive amendments to criminal laws.
Amicus and Senior Advocate Rebecca John had told the Delhi High Court that there could be a legitimate expectation regarding sex in a marriage, but it cannot lead to forcible sex with the wife.
“There can be an expectation but expectation cannot lead to forcible sex with your wife,” said Rebecca John, who appeared as amicus curiae in the matter relating to marital sex.
She submitted before the court that if a married woman can be subjected to sexual intercourse without her consent, then Exception 2 must be viewed as an instrument of oppression.
“And if consequences, intended or unintended are that a married woman can be subjected to sexual intercourse without her consent then it is my submission that Exception 2 must be viewed as an instrument of oppression,” she argued before Delhi High Court.
Appearing for Men Welfare Trust (MWT), Advocate J Sai Deepak had submitted that the judiciary has to restrain itself while exercising powers of judicial review, and it cannot direct the Parliament to make a particular kind of enactment. He also argued that the courts have a limited role in policy and the judiciary has a larger role in the issue of civil liberties.
He has cited various judgements that the court shall not intervene with the issues and concluded his submission by stating that the Lakshman Rekha has to be drawn in light of the judgements cited by him. (ANI)