Appeal filed in Supreme Court challenging Delhi HC's split verdict on marital rape

On Wednesday, the two-judge bench of the Delhi High Court pronounced a split verdict on a plea seeking to criminalize marital rape. While Justice Rajiv Shakdher ruled in favour of criminalizing marital rape, Justice Hari Shankar disagreed, holding that Exception 2 to IPC Section 375 (rape) doesn't violate the Constitution as it's based on 'intelligible differentia'.

Following this, an appeal has now been filed before the Supreme Court against the split verdict in the marital rape case on the validity of Exception 2 of Indian Penal Code (IPC) IPC Section 375.

Khushboo Saifi, one of the petitioners before the High Court, filed an appeal on Tuesday morning before the Supreme Court.

The court dealt with a batch of petitions seeking to strike down Exception 2 granted to husbands under the Indian rape law. Exception 2 underlines that sexual intercourse by a man with his wife is not rape unless she is below 15 years of age. The pleas filed by the NGOs All India Democratic Women's Association and RIT Foundation had challenged the exception to IPC Section 375 (rape). The matter is now moved to the Supreme Court.

On May 11, a Division Bench of the Delhi High Court comprising Justices Rajiv Shakdher and C Hari Shankar delivered a split verdict in the case. While Justice Shakdher struck down the provision as unconstitutional, Justice Shankar upheld the same.

According to the order passed by the bench, Justice Rajiv Shakdher held that husbands can be held 'criminally liable' for sexual relations without the consent of the wife. On the other hand, Justice C Harishankar expressed his disagreement with this view. 

"The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 and are, therefore, struck down," Justice Rajiv Shakdher had said. 

"I do not agree. There is no evidence to show that the impugned exception violates Articles 14, 19, or 21. There is an intelligible differentia. I am of the view that the challenge cannot sustain," Justice C Hari Shankar held. 

The petitioner Khushboo Saifi came in support of Justice Rajiv Shakdher’s verdict and opposed Justice Hari Shankar’s judgment.