Delhi High Court delivers split verdict on marital rape

Court permits parties involved in case to approach Supreme Court

The Delhi High Court on May 11 delivered a split verdict on the issue of criminalising marital rape. 

Justice Rajiv Shakdher struck down Exception 2 of Section 375 Indian Penal Code (IPC), which decriminalises marital rape.

On the other hand, Justice C. Hari Shankar upheld the validity of the controversial provision in rape law, saying it was based on “intelligible differentia”.

In view of the split verdict, the High Court has permitted the parties involved in the case to approach the Supreme Court over the issue.

In India, marital rape is not defined in any statute or law. The petitioners, NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim, had challenged as unconstitutional an exception to Section 375 of the IPC, which defines rape.

The exception says sexual intercourse by a man with his wife aged 15 years or above is not rape even if it is without her consent. In October 2017, the Supreme Court increased it to 18 years.

NGO Men Welfare Trust (MWT), which is opposing the batch of petitions seeking criminalisation of marital rape, had argued that sexual intercourse between a husband and wife cannot be treated at a par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.