The division bench, presided by Justice Rajiv Shakdher and Justice C Hari Shankar, of the Delhi High Court has delivered a split verdict in the marital rape case, regarding the validity of Exception 2 of Section 375 of the Indian Penal Code, 1860. As per the exception, the charge of rape cannot be attracted against a husband who has non-consensual sex with his wife.
Justice Rajiv Shakdher held that “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”. However, the provision was upheld by Justice C Hari Shankar, who held that “I do not agree. There is no support to show that impugned exception violates Articles 14, 19 or 21. There is an intelligible differentia. I am of the view that the challenge cannot sustain.”