Justice Rajiv Shakdher held Exception 2 to Section 375 (rape) of the Indian penal Code, which exempts husband from the offence of rape for forcible sex with wife, as unconstitutional.
Meanwhile, Justice Hari Shankar said he did not agree with Justice Shakdher in and held that Exception 2 to IPC Section 375 does not violate the Constitution.
Under the exception given in IPC Section 375, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.
The judges have granted a certificate to appeal to Supreme Court, saying substantial questions of law are involved in the matter.
The petitioners had challenged the constitutionality of the marital rape exception under Section 375 on the ground that it discriminated against married women who are sexually assaulted by their husbands.
A bench of Justices Shakdher and Hari Shankar had reserved its judgment on February 21 on the petitions seeking to strike down the exception granted to husbands under the Indian rape law after conducting marathon hearings on the issue.
Justice Shakdher had stressed that when a girlfriend or live-in partner says “no”, forced sex is an offence. “The relationship cannot put it on a different pedestal. A woman remains a woman,” he had pointed out.
However, Justice Hari Shankar had underlined the “qualitative difference” in the sexual equation between people who were married to each other and between those who were not. He had pointed out that “there is a right to expect sexual relations from both sides in a marriage, but no such right when the parties are not married” and questioned the “too much emphasis” being put on the wife’s consent by the court-appointed amicus.
In February, the court had granted two weeks to the Centre to place its stand on a batch of petitions seeking criminalisation of marital rape. However, the Centre sought suspension of hearings, saying it sent a communication to all states and Union Territories, seeking their comments on the issue and urged the court that the proceedings be adjourned till such time the inputs were received.
The bench, however, refused to stop the hearings in the absence of a timeline by when the consultations would be over and went ahead to wrap up hearings and reserve the matter for orders.
The court was hearing PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
In its 2017 affidavit, the Centre had opposed the pleas submitting that marital rape couldn’t be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.
NGO Men’s Welfare Trust opposed the batch of petitions seeking criminalisation of marital rape.