On the much-discussed issue of criminalization of marital rape, the Delhi High Court today gave a split verdict. The case will now go to the Supreme Court.
The two judges, Justice Rajiv Shakdher and Justice Hari Shankar, failed to agree on their decision to criminalize marital rape.
Petitions filed in 2015 challenge an exception under the Rape Act that protects men who have consensual sex with their wives if the woman is a minor or over 18 years of age.
Justice Shakdher said the exceptions violated Articles 14, 19 and 21 of the Constitution, which speak to the right to equality, freedom of expression and protection of life and personal liberty.
“I have not been able to agree with my learned brother,” said Justice Shankar.
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The court, he said, could not replace the judgment of their subject value for the opinion of the democratically elected legislature and the exception was “based on marriage as a reasonable value.”
Judges reserved judgment after a marathon hearing on February 21 on the rape law and exceptions to marital rape.
On February 7, the Delhi High Court gave the Center two weeks to clarify its position on criminalizing marital rape. However, the center has asked for more time. “You have to bite the bullet,” the High Court said in a stern response. If you say that the court should adjourn the case indefinitely, it will not happen.
The Center argued that it sought comments from all States and Union Territories because of the far-reaching consequences and implications of any decision in social and family life and that the consultation process would take time.
A “holistic view” had to be taken on marital rape, Solicitor General Tushar Mehta told the court.
In a 2017 affidavit, the Center opposed the petition, saying that marital rape could not be criminalized because it could “destabilize the institution of marriage” and become a tool for harassment of husbands. But the center later told the court it was “reconsidering” its previous position.