Marital rape offence? Delhi High Court gave a divided decision

Publish Date: 11 May, 2022 |

On Wednesday, May 11, the Delhi High Court has given a decision on various petitions seeking criminalization of marital rape. While pronouncing the judgment, Justice Rajiv Shakdher held it unconstitutional to exempt husband from the offense of marital rape. The bench quashed exception two of Section 375, 376B of IPC, which exempted husbands from having sex with their wife without consent, holding it as a violation of Article 14.

Divided verdict by the judges

During the hearing, while Justice Rajiv Shakdher, who headed the division bench, favored the quashing of the marital rape exception, Justice C Hari Shankar observed that the exception under the IPC is not unconstitutional and is based on a sensible distinction.

In fact, the petitioner had challenged the constitutionality of making marital rape an exception under Section 375 (rape) of the IPC. According to this section any sexual act performed by her husband on a married woman shall not be deemed to be rape unless the wife is a minor.

Two weeks' time was given to present the side on the petitions

The court is considering petitions seeking to do away with the exemption given to husbands under the Indian Rape Act. The High Court had on February 7 given the Center two weeks to present its stand on the petitions seeking criminalization of marital rape. The Center had filed an affidavit urging the court to defer hearing of the petitions, which contended that criminalization of marital rape has far-reaching socio-legal ramifications in the country and called for a fruitful consultation process with various stakeholders, including state governments. 

The Center had argued before a bench of Justices Rajiv Shakdher and C Hari Shankar that it has sent letters to all states and union territories seeking their comments on the issue. The counsel for the Center said that the proceedings should be adjourned till the inputs are received.


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