Sex without consent of wife is considered rape ! See what Delhi High Court says

New-Delhi: A division bench of the Delhi High Court on Wednesday delivered a split verdict regarding criminilisation of marital rape case.

While Justices Rajiv Shakdherand and C Hari Shankar of the Delhi High Court disagreed on almost every aspect of the challenge to Exception 2 to Section 375 of Indian Penal Code (IPC), they held a concurrent view that the matter should now be decided by the Supreme Court.

While Justice Shakdher struck down the provision as unconstitutional, Justice Shankar upheld the same.

“The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of article 14, 15, 19(1)(a) and 21 of the Constitution and therefore deserve to be struck down,” Justice Shakdher came to a conclusion.

Justice Shakdher also held that the offending husbands do not fall within the ambit of the expression “relative” contained in Section 376 (2)(f) of the IPC  and consequently the presumption created under Section 114 A of the Evidence act will not apply to them.

However, Justice C Hari Shankar said that he does not agree with Justice Shakdher. Justice Harishankar has held the Exception 2 to Section 375 does not violate Constitution and the exception is based on intelligible differentia

The Court had also appointed Senior Advocates Rebecca Johnand Rajshekhar Rao as amici curiae in the matter.

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.

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