Apex Court notice to Union over Delhi HC's marital rape order

The Supreme Court on Friday issued a notice to the Union government on pleas arising out of the split verdict by the Delhi High Court with regard to exception for husbands for sexual assault under the penal law.

A bench of Justices Ajay Rastogi and B V Nagarathna sought a response from the Union government on pleas against the May 11 judgement and put the matter for consideration in February 2023.

The court said it would examine the matter as the position of law has been existing for quite a long time.

It also decided to club all pending matters.

Appearing for the 'All India Democratic Women's Association', advocate Karuna Nundy said there was a substantial question of law involved in the matter here and the High Court's two judges, who gave the divergent views, were unanimous that this should be decided by this court.

Senior Advocate Gopal Shankarnarayan sought to tag along a matter pending since 2018 which could not be heard, though repeated requests were made for it.

He was referring to the plea filed by advocate Pooja Dhar on behalf of 'Youth for Equality', which sought a declaration that Explanation 2 to Section 375 that reads as "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape" is ultra vires Articles 14, 19 and 21 of the Constitution and therefore void and inoperative.

The matter here involved a critical question concerning recognition of spousal violence and its impact on social, cultural, and familial relationships.

The Delhi High Court had on May 11 this year given a split judgement on a plea challenging the validity of Exception 2 of Section 375 of the Indian Penal Code (IPC) which decriminalised marital rape.

Acting on the batch of PILs, Justice Rajiv Shakdher struck down the marital rape exception, while Justice C Hari Shankar, the other judge in the bench, concluded that the provision under the IPC is not unconstitutional and was based on an intelligible differentia.

NGOs RIT Foundation, AIDWA, a man and a woman sought a direction to strike down the exception granted to husbands under the Indian rape law. Men's rights groups and others have opposed the plea.

The Union government had then not taken any position on the issue before the High Court, saying it was required to consult all stakeholders including the States and Union Territories.