On the widely-debated question of criminalising marital rape, the Delhi High Court today delivered a split verdict. The case will now go to the Supreme Court.
Two judges, Justice Rajiv Shakdher and Justice Hari Shankar, failed to agree on their verdict on a batch of petitions seeking to make marital rape a crime.
The petitions, filed in 2015, challenge an exception under rape laws that protects men who have non-consensual sex with their wives from criminal prosecution if the woman is not a minor, or above 18.
Justice Shakdher said the exception violated Articles 14, 19 and 21 of the Constitution dealing with the Right to Equality, Freedom of Speech and Expression and Protection of Life and Personal Liberty.
"I have not been able to agree with my learned brother," said Justice Shankar.
The courts, he said, cannot substitute their subjective value judgement for the view of the democratically-elected legislature and the exception "was based on marriage as an intelligible criteria".
The judges had reserved a judgement on February 21 after marathon hearings on the rape law and the exception for marital rape.
On February 7, the Delhi High Court gave the centre two weeks to articulate its stand on criminalisation of marital rape. The centre, however, sought more time. In a sharp reaction, the High Court had snapped: "You have to bite the bullet. If you say the court should adjourn the matter endlessly, it won't happen."
The centre had argued that it had invited comments from all states and Union Territories, given the impact and far-reaching consequences of any judgment on social and family life, and the consultative 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 centre had opposed the petitions, saying that marital rape cannot be made a criminal offence as it could "destabilise the institution of marriage" and become a tool for harassing husbands. But the centre told the court later it was "re-looking" at its earlier stand.
The Karnataka High Court had earlier this year made strong remarks in the case of a man accused of forcing his wife to be a "sex slave". Marriage is no license to "unleash a brutal beast", the court had said.
"A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape," the order stated, adding that the legislature must consider making marital rape a crime.