SPLIT VERDICT ON MARITAL RAPE BY DELHI HC

The Dehli High Court’s division bench has passed a split verdict in the matter of criminalization
of marital rape. The Court was hearing four petitions challenging the constitutionality of
exemption to section 375. The petitions seek to invalidate the exemption of rape under section
375 as a whole on the grounds that it violates the fundamental rights of married women.

History of the exemption:

The acts that constitute rape by males are defined under section 375 of the IPC. There are two
exceptions in the regulation. The Domestic Violence Act of 2005 makes reference to marital rape
by any kind of sexual assault in a live-in or married relationship, but only allows civil remedies.
When the Law Commission of India was evaluating different recommendations to modify India's
sexual violence legislation in 2000, it denied repealing the Section 375 exception. Although this
was rejected, some of the recommendations were implemented and were put into the Criminal
Law (Amendment) Act that was passed in 2013.

What has happened in this case:

The division bench consisting of Justice Rajiv Shakder and Justice C Hari Shankar expressed
two different opinions while delivering the verdict.

Exception 2 to Section 375 of the Indian Penal Code (IPC), which states that sexual intercourse
between a man and his own wife is not rape, was overruled by Justice Shakdher. While declaring
it unconstitutional, Justice Shakdher held that non-consensual intercourse between a man and his
wife still amounts to rape under the Indian Penal Code (IPC), 1860 as it is violating the women’s
fundamental rights of life, equality, and freedom of expression.

While delivering the verdict he stated that in order to understand whether a classification based
on the relationship between the offender and victim is constitutionally viable, one would have to
examine whether the classification has an intelligible differentia (IA) with the object which is
sought to be achieved. He observed that it is undeniable that there is a distinction between
married, separated, and single couples. However, if the distinction is acknowledged, it must be
determined whether the distinction between married and unmarried couples has a reasonable
connection with the goal of the main provision, which is to prevent a woman from being forced
into a sexual act against her choice or permission.

According to him, the categorization is arbitrary and irrational since it appears to imply that
forced sex outside of marriage is "real rape" and that the same conduct within marriage is
anything but rape. To prove his point, he points out how "The law has given sex workers the
ability to say "no," but a married woman has not. The co-accused will bear the brunt of the rape
legislation, but not the offending husband, in a gang rape involving the victim's husband." J
Shakdher has also found "conjugal expectations" arguments to be unsound. He claims that, while
there is a genuine expectation of sex in a happy marriage, a man cannot claim unrestricted access
or "marital privilege" over his wife.

Justice C Hari Shankar on the other hand ruled against taking down the exemption of section
375. While emphasizing the importance of marriage, he pointed out that ignoring or even
attempting to weaken marital connections is ignoring reality. He defined the wife-husband
connection from all other male-female interactions, claiming that a justified expectation of sex is
one of its inescapable events. He cited the submissions made by amicus curie Mr. Raja Shekar
Rao in which he submitted that prosecuting a man based on marriage is unreasonable and
violates article 14.

He also mentioned a slew of laws, including sections 498A and 376B of the Indian Penal Code,
1860, Section 198B of the Code of Criminal Procedure, 1973, and various other provisions of the
Protection of Women From Domestic Violence Act, 2005, that deal specifically with sexual and
other forms of abuse in marriage. He pointed out that the Petitioner's whole case is based on the
incorrect assumption that a husband cannot be arrested for imposing nonconsensual sexual
intercourse on his wife.

Aftermath Procedure:
Generally in the event of a split verdict, the case must be sent to a third judge of the high court,
who will make a ruling in either direction. The third judge considers all of the arguments
presented by both parties and the amicus curiae's contributions before reaching a conclusion.

In this case, both Justice Shakdher and Justice Hari Shankar in their judgments state that they
give permission to appeal to the Supreme Court.
Brief news - 4 to 5 lines
Procedural History of the case
Legal provisions
Court”s holding
Jury’s comments