Delhi HC divided on marital rape


A larger Supreme Court bench is likely to hear the matter.

A two-judge bench hearing the case for criminalizing marital rape passed a split verdict, keeping marital rape as an exception to Section 375 (rape) of the Indian Penal Code (IPC).

The division bench consisted of Justice Rajiv Shakdher and Justice C Hari Shankar. The advocate for the petitioner in the case was Karuna Nundy, a senior advocate. 

Justice Shakdher noted that the provisions which allow a husband to have intercourse with his wife, without her consent are “violative of Article 14 of the Indian Constitution and are struck down.” 

Justice Hari Shankar, on the contrary, disagreed despite acknowledging that there is enough proof to show that the exception violates Articles 14, 19, and 21 of the Indian constitution.

He referred to the principle of “intelligible differentia” which is used to interpret Article 14. 

The Supreme Court in Sakhawat Ali case in 1954, laid down the test of intelligible differentia. Based on this principle, he upheld the constitutionality of section 376B of the IPC, which talks about sexual intercourse between husband and wife at the time of separation.

The principle states that different people shall be treated equally, after considering their situation and position in a particular matter. Since the husband is related to the wife, he shall be treated differently when compared to other men.

Yogita Bhayana, a human rights activist, said “Rape is rape. A man cannot rape a woman just because they are married.” She further said that Articles 14, 19, and 21 are a part of the basic structure of the Indian Constitution. 

“It is important to consider the right to life and liberty of a woman in these cases, not just look into the relations,” she added.

The division bench has granted a certificate to the petitioner, to appeal to the Supreme Court saying that there is more to be discussed when it comes to marital rape.

J Sai Deepak, an advocate in the case, tweeted that the case has now gone to the Supreme Court and will be referred by a larger bench.