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Criminalization of marital rape: Appeal in Supreme Court against split Delhi HC verdict

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The issue of criminalization of marital rape has reached the Supreme Court on Tuesday, after one of the petitioners challenged the Delhi High Court’s split verdict.

The petition was filed in the Supreme Court by petitioner Khushboo Saifi against the decision of Justice C. Harishankar, one of the two judges of the Delhi High Court, who delivered the judgement on May 11.

Justice Harishankar had observed that Exception 2 to Section 375 of the IPC did not violate any law and would continue to exist.

However, Justice Rajiv Shakdher, also part of the Bench, had declared Exception 2 of Section 375 of the IPC unconstitutional.

Exception 2 of Section 375 provides protection to husbands from the allegation of marital rape, in case the wife attains majority.

In their decision over the criminalization of marital rape on May 11, one of the judges of the High Court considered marital rape a crime, while the other did not consider it a crime.

Justice C. Harishankar rejected the petition to criminalize marital rape noting that any change in the law has to be carried out by the legislature since the issue requires consideration of various aspects, including social, cultural and legal.

On the other hand, Justice Shakhder said the legitimate expectation of sex was an inexorable incident of relationship between a husband and wife, which distinguished it from other relationships.

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