The division bench of the Delhi High Court on Wednesday delivered a split verdict on pleas seeking to criminalise marital rape. While Justice Rajiv Shakder found the rape law exemption to be unconstitutional, Justice C Hari Shankar disagreed.
Justice Shakdher held that the Exception 2 to Section 375 IPC, which exempts a husband from the offence of rape if he has forced sex with his wife, as unconstitutional. Justice Shankar said he did not agree and observed that Exception 2 to Section 375 did not violate Constitution as it is based on "intelligible differentia".
"I am of the view that the challenge cannot sustain," he said.
The high court granted leave to appeal the judgment before the Supreme Court since the substantial questions of law have been raised and two high courts have already given their observation on this issue.
Justice Shakder could be referring to order passed by the high courts of Gujarat and Karnataka which gave significant observations on the issue of marital rape.
Earlier this year in March, the Karnataka High Court said a husband could not be protected under the institution of marriage as it allowed charges to be framed against a man accused of raping his wife.
In December 2021, the Gujarat High Court said it would decide on the constitutional validity of whether the exception to marital rape under rape laws violated fundamental rights.
The Delhi High Court in March had reserved its verdict on a batch of pleas seeking to criminalise marital rape even after the Centre reiterated that it couldn't take a stand on this issue without a consultative approach.
At the time, the division bench comprising Justices Rajiv Shakder and C Hari Shanker had expressed its helplessness over the Centre's lack of a definitive stand and said it had no option but to "close the issue".
The hearing was the second round of arguments on the same plea which was filed by NGO RIT Foundation in January 2015. The arguments, in this case, were almost over before proceedings were halted due to the COVID-related pandemic. The hearing before the high court is a resumption of the stalled hearing.
Also Read: Rape Laws in India: All You Need To Know