Delhi High Court judges Rajiv Shakdher and C. Harishankar have given separate judgments regarding marital rape. One judge of the court supported the abolition of this provision, while another judge said that it is not unconstitutional.
New Delhi: The Delhi High Court on Wednesday gave a fractured verdict in the matter of declaring marital rape a crime. High Court Judge Justice Rajiv Shakdher was in favor of criminalization of the case, so he pronounced his verdict declaring the case as a crime. While Justice Hari Shankar disagreed on this. The bench gave liberty to the parties to file a petition in the Supreme Court. Now the hearing regarding marital rape will be held in the Supreme Court.
Judges gave different decisions
Justice Rajiv Shakdher, heading the bench, favored the abolition of the exception of marital rape, while Justice C. Harishankar observed that the exception provided under the Indian Penal Code is not unconstitutional and the respective distinction is easily understandable. The petitioners have challenged the constitutionality of the exception to marital rape under Section 375 (rape) of the Indian Penal Code on the ground that this exception discriminates against married women who are sexually harassed by their husbands. Is. According to this exception, if the wife is not a minor, then her husband having sex with her or doing sexual acts does not amount to rape.
Justice Shakdher disagrees with the verdict
Justice Shakdher, while pronouncing the verdict, said, "As far as I am concerned, the disputed provision—exception two of section 376(e) and section 375—articles 14, 15, 19(1) (a) and 21 of the Constitution." are infringed upon and are therefore quashed.” He said his announcement would be effective from the date of pronouncement of the judgement. However, Justice Shankar said, "I am unable to agree with my learned brother." He said that these provisions do not violate Articles 14, 19 (1) (a) and 21 of the Constitution. He said that courts cannot substitute their own subjective judgment in place of the democratically elected legislature's view and that the exception is based on an easily discernible related distinction.
Justice Rajiv Shakdher, heading the bench, favoured
the abolition of the exception of marital rape, while Justice C. Harishankar observed that the exception provided under the Indian Penal Code is not unconstitutional and the respective distinction is easily understandable. The petitioners have challenged the constitutionality of the exception to marital rape under Section 375 (rape) of the Indian Penal Code on the ground that this exception discriminates against married women who are sexually harassed by their husbands. Is. According to this exception, if the wife is not a minor, then her husband having sex with her or doing sexual acts does not amount to rape.
He said that the challenge raised by the petitioners to these provisions cannot be upheld. The Center had in February urged the court to give more time to clarify its stand in the matter, which was rejected by the bench on the ground that it was not possible to adjourn the present matter endlessly. The Center had opposed these petitions in its 2017 affidavit.