A week after the Delhi High Court’s verdict that expressed ‘split views’ on criminalisation of marital rape, an appeal has been moved in the Supreme Court challenging the exception to Section 375 of the Indian Penal Code.
Challenging the split verdict, one of the petitioners Khushboo Saifi knocked on the doors of the apex court.
On May 11, a bench of Justice Rajiv Shakdher and Justice C. Hari Shankar expressed different opinions in the judgement on the exception to Section 375 of the IPC, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.
Justice Rajiv Shakdher supported striking down the contentious law stating that the exemption of the husband from the offence of marital rape is unconstitutional to which Justice Hari Shankar did not agree.
“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 struc kdown,” said Justice Shakder.
Notably, the high court has observed that rape is rape and a rapist remains a rapist, and while every other woman, including a sex worker, is entitled to decline consent and prosecute for rape, but the right which is not available to a married woman.
“No amount of classification and verbal jugglery can alter that reality,” Justice Shakdher held.
The opposing argument was that the position of a sex worker cannot be compared with persons bound by marriage. The perpetrator or the abuser cannot claim restitution of conjugal rights against a sex worker and correspondingly, a sex worker cannot claim maintenance against the perpetrator or abuser.
Solicitor General Tushar Mehta, who appeared on behalf of the Centre, had submitted that considering the far-reaching consequences, it has sent a communication to all states and union territories asking for their comments on the issue and urged the court that the proceedings be adjourned till the time the inputs are received. However, the bench refused to grant further time to the Centre to make its stand clear on the issue.