Marital Rape Exception Case: SC Issues Notice to Centre, Next Hearing in 2023

The Delhi High Court on 11 May, had seen a split decision on the constitutionality of Exception 2 of Section 375.

(Photo: Aasawari Kulkarni/Feminism In India)

Supreme Court on Friday, 16 September, issued notices to the Centre and other parties on pleas against Delhi High Court's split verdict in the matter of criminalising marital rape. The apex court has listed the matter for further hearing in February 2023.

The Delhi HC on 11 May, had seen a split decision on the constitutionality of Exception 2 of Section 375 of the Indian Penal Code (IPC).

Exception 2 to Section 375 of the IPC – the section that defines what the offence of rape is – says:

"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

The Split Verdict

Justice Rajiv Shakdher held that Exception 2 to Section 375 of the Indian Penal Code (which prescribes the marital rape exception) is "violative of Articles 14, 15, 21 of the Constitution and hence must be struck down."

However, Justice C Hari Shankar, the other judge on the division bench, disagreed and held that there were no grounds for the court to strike the exception down, which was justified under Article 14, because there was an intelligible differentia created by marriage.

A two-judge bench of Delhi High Court pronounced a split verdict on an issue relating to criminalising marital rape. Justice Rajiv Shakdher ruled in favour of criminalising, while Justice Hari Shankar disagreed.