The Delhi High Court on Wednesday, May 11, gave a split verdict on pleas seeking to criminalise marital rape and do away with the exception in rape laws that insulate husbands. Both the judges granted liberty to the parties to move to the Supreme Court, stating that the case involves a question of constitutional law.
Justice Rajiv Shakdher stated the exception is violative of the Constitution's Article 14, which provides equality and equal protection of the laws. However, Justice C Hari Shankar said that it does not violate any law and can continue, Hindustan Times reported.
What Did The Two Judges Say?
"As far as I am concerned, the impugned provisions -- exception 2 to section 375 and section 376 (E)... are violative of Articles 14, 15, 19(1) (A) and 21 of the Constitution and are hence struck down.'' Courts cannot substitute their subjective value judgment for the view of the democratically elected legislature and the exception is based on an intelligible differentia," Justice Shakdher said.
"There is no support available, either statutory or precedential that every act of non-consensual sex on his wife is rape. The impugned provision does not violate Article 14 but is based on an intelligible differentia having a rational nexus... The impugned exception (375) does not violate article 21, 19(1)A… it cannot be called unconstitutional and therefore can exist… and, in such circumstances, the court cannot substitute its subjective values… for the view of the democratically elected legislature. I am of the considered opinion that the petitioner's challenge cannot sustain," Justice C Hari Shankar differed.
However, one of the observations that he made while delivering his verdict, has sparked a row. Justice Hari Shankar said, "A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined. Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger?"
Justice Shankar added that the voice of the legislature is the voice of the people, saying if the petitioners feel a husband forcing his wife for sexual intercourse against her will should amount to rape, they should approach Parliament.
Statement Receives Criticism
The observation has sparked a row, with several, including politicians, criticising the statement, India Today reported.
Reacting to this, Shiv Sena MP Priyanka Chaturvedi said, "Yes it can be said with a modicum of propriety&also with authority by most women: Hon. Judge, whether a stranger or even a husband who forces himself onto a woman or his wife, the experience of outrage, disrespect and violation is just as strong. Ask women around you. Thank you."
Congress leader Jaiveer Shergill also reacted to the observation and said, "Disagree with the split verdict given by Justice Hari Shankar refusing to criminalise marital rape. Right to say "no",women's right to her own body, right to live with dignity under Art21 of Constitution is higher than "institution of marriage".Hope Supreme Court ensures justice."