Several petitions have been filed following a split decision from Delhi High Court on whether or not to prosecute husbands for non consensual sex with their wives.
A bench of the Supreme Court headed by Justice Ajay Rastogi sought a response from the Government on appeal to criminalized the marital rape. These petitions pending in the court would be taken up together for hearing in February next year.
A Division Bench of Delhi High Court during hearing had agreed that the case has raised the substantial question of law which required an authoritative ruling from the Supreme Court.
The issue involved in the case focuses on the exception in rape law as per the provisions of the Indian Penal Code (IPC) which dismisses the idea of rape within marriage. The question includes whether or not a married woman has bodily autonomy. In another words, whether a husband should accept that his wife’s “no means no” and any transgression would amount to rape.
Justice Rajeev Shakdher the lead judge on Delhi High Court Bench which delivered a split opinion in May, had favoured striking down the marital rape exception for being ‘unconstitutional’. The said Judge had said, it would be tragic if a married woman’s call for justice is not heard even after 162 years since the enactment of the IPC.
Justice C. Harishankar, co judge on the Bench had however disagreed and said the exception under the rape law was based on an ‘intelligible differentia’.
The petitioners had challenged the constitutionality of marital rape exception under Section 375 of the IPC on the grounds that it discriminated against the married women.
