The Delhi High Court on Wednesday, 11 May, saw a split decision on the constitutionality of the marital rape exception.
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.
Exception 2 to Section 375 states: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape." [In 2017, the Supreme Court held that the word "fifteen" should be read as "eighteen" as the age of consent in India is eighteen.]
What Does a Split Verdict Mean?
In the event of a split verdict like this, the matter has to be referred to a third judge of the Delhi High Court for a decision either way.
In 2018, for instance, a two-judge bench of the Madras High Court saw a split over the legality of a decision of the Tamil Nadu Assembly Speaker. The matter had to be referred to a third judge, who sided with one of the two judges a few months later.
The procedure for this will require the chief justice of the high court to assign the matter to a third judge on the administrative side. Justice Vipin Sanghi is currently the acting chief justice of the Delhi High Court.
Once the decision is clarified, it can be appealed in the Supreme Court, with leave granted by both judges already.
What Was the Case Before the Delhi High Court?
The petitions in the Delhi High Court, first filed by social and gender equality activist group RIT Foundation, argue that the marital rape exception violates Article 14 (right to equal treatment of law) and Article 21 (right to life including privacy and dignity) of the Constitution.
Following the main arguments by the petitioners, intervening men's rights groups and the Delhi government, the high court bench of Justices Rajiv Shakdher and C Hari Shankar heard from senior advocate Rajshekhar Rao as amicus on the constitutional law issues. Rebecca John was asked to assist the court on issues of criminal law.
In detailed submissions before the high court, John had addressed the court on the antiquated origins of Exception 2 to Section 375 of the IPC, how striking it down would not amount to the creation of a new offence, and why there was no right to forcible sex in a marriage.
She had also countered the argument raised by the Delhi government and men's rights groups who had argued against the removal of the exception on the basis that there are other provisions in the IPC which offer appropriate remedies to married women.
John argued that these were separate offences, and cannot be equated with the specific offence of rape. Delving into the IPC, she showed how there were offences like theft and dacoity which had common elements to them, but they were distinct offences with different individual ingredients, punishments, and intentions.
"These are standalone offences, different in their nuance and ingredients. That is the structure of the penal code. There are no overlapping offences though some ingredients may be common," she explained.
John had also addressed the point specifically raised by Justice Hari Shankar while upholding the marital rape exception, that the exception can be justified since there is an intelligible differentia between sexual relations within a marriage and outside it, which means there is no violation of Article 14.
Once an intelligible differentia is established, the courts tend to not interfere with a policy decision of the legislature. Justice Hari Shankar has held that if the legislature feels this exception is needed to the offence of rape in the IPC in the context of this difference, the courts should not interfere.
During her arguments, the amicus had pointed out that the Supreme Court in recent judgments had noted that the Article 14 assessment cannot be reduced to a formalistic approach using this two-pronged test, and had to consider the effects of a law.
In the Navtej Johar case on Section 377 of the IPC, where the apex court decriminalised consensual homosexual acts, Justice DY Chandrachud had warned against a formalistic approach, writing (as John read out in court):
"Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance."
Justice Chandrachud held that Article 14 contained a powerful statement of values, "of the substance of equality before the law and the equal protection of laws." This substantive concept is about "ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence."
Thus, as the Supreme Court affirmed in another judgment in 2021, there was a need to go beyond the old two-pronged test, as sticking to it did not further the true meaning of the equality clauses under the Indian Constitution.
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