The High Court on Wednesday gave a divided verdict on the demand to declare marital rape a crime. One judge ruled in favor of criminalizing marital rape on the issue, pending for nearly seven years, while another gave his opinion against it. However, both the parties were given liberty to appeal in the Supreme Court.
Justice Rajiv Shakdher, heading the bench, struck down the exception 2 of Section 376B and Section 375 of the Indian Penal Code (IPC) as unconstitutional. He said that having sex with a wife who is above 18 years of age by the husband or the estranged husband without her consent is a violation of her constitutional rights.
At the same time, Justice C. Hari Shankar said, this exception is not unconstitutional and is based on a sensible distinction. RTI Foundation and others have challenged the validity of the law. It is said that it discriminates against married women whose husbands have sex without their consent.
The Delhi High Court has given a fractured verdict on the demand to declare marital rape as an offence, saying that the right of married women needs to be respected and recognized. Giving separate judgments in the case, Justice Rajiv Shakdher said that there is a need to empower women in the society. He said that if women were not empowered then there is no point in treating them as goddesses.
Justice Shakdher said that ‘they (women) are equal to us’. Some would happily say our better half. He said it would be sad if the plea of a married woman for justice is not heard even after 162 years of the implementation of the Indian Penal Code. The judge said that in my view, self-confident and good people have nothing to fear, if this change persists.
Justice Shakdher in his judgment declared marital rape a crime, setting aside the exception in the law. While pronouncing the verdict, he said that after considering all the facts, ‘as far as I am concerned, exceptions 2 to section 375 and section 376(e)…, articles 14, 19(1)(a) and 21 of the Constitution’ is infringing on the rights granted under it, therefore it is canceled. He said the decision would be effective immediately.
He said the law should be gender neutral. Predictably, those who want the marital rape exception to continue may be in favor of repeal of the law if the victim is their sister, daughter, mother or someone else.
Disagreeed: Justice C Hari Shankar said that ‘I do not agree with my learned brother (judge). He further said in the judgment that these provisions do not violate Articles 14, 19 (1) (a) and 21 of the Constitution. Courts cannot substitute their subjective value judgment for the view of a democratically elected legislature and the exception to the law is based on a sensible distinction. Describing the voice of the legislature as the voice of the people, he said that if the petitioners feel that a husband forces his wife to have sex against her will, he should approach the Parliament.
Advocate Karuna Nandy, appearing for the petitioners, said that they would move the Supreme Court against the decision.
decision on their petitions
The court gave this fragmentary judgment while disposing of PILs filed by NGO RIT Foundation, All India Democratic Women’s Association, one man and one woman. In these petitions, there was a demand to abolish the existing exception of the law and declare marital rape as a crime. A petition was sought to retain this law.
Marital rape crime in 150 countries, not in 32 countries including India
According to a United Nations report, data up to the year 2019 shows that marital rape is a crime in 150 countries. At the same time, there are 32 countries of the world including India, where it is not a crime. According to the report, one in five women in the world between the ages of 15 and 49 are physically abused by their husbands.
Along with India, countries like Pakistan, Bangladesh, China, Afghanistan, Malaysia, Singapore, Oman, Yemen, Bahrain, Kuwait, Haiti, Laos, Mali, Myanmar, Senegal, Tajikistan, Botswana, Congo, Iran, Lebanon, Uganda, Algeria, Brunei Marital rape is not an offence.
Government fights lawsuit in Austria
In Austria marital rape was outlawed in 1989. In 2004, the government declared it a state offence. Under this, even if the victim does not complain, the government will fight the case in the court and bring justice to the victim.
10 to 14 married women raped in America
On July 5, 1993, the United States made marital rape a crime in all states. Marital rape accounts for 10 to 14 percent of married women in the US. One-third of women have physical relations with their husbands without their consent.
Disappointment: Women activists expressed disappointment over the decision
The High Court on Wednesday gave its divided verdict in the matter of criminalizing marital rape. After this, the women activists associated with the case called this decision disappointing. At the same time, he hoped that the Supreme Court will give a comprehensive and more sensible decision on this issue.