New Delhi: The voice of the legislature is the voice of people and if the petitioners feel a husband forcing his wife for sex against her will should amount to rape, they should approach Parliament, Justice C Hari Shankar of the Delhi High Court said on Wednesday.
He refused to hold as unconstitutional the exception in law which grants protection to husbands from being prosecuted for non-consensual sexual intercourse with their wives.
He said the court cannot label, as particular offences, the acts that the legislature has consciously not chosen to so label.
“Where, in so choosing, the legislature has not acted in derogation of the Constitution, we have to step back. Any further foray, by us, into this disputed realm, would partake of the character of judicial legislation, which is completely proscribed by law,” Justice Shankar said in his 200-page judgement.
The issue of criminalisation of marital rape witnessed a split verdict from a division bench of the high court with one of the judges favouring striking down the exception in law which grants protection to husbands from being prosecuted for non-consensual sexual intercourse with their wives, the other refused to hold it as unconstitutional.
However, both the judges on the bench concurred with each other for granting the certificate of leave to appeal to the Supreme Court in the matter as it involves substantial questions of law that requires a decision from the top court.
While Justice Rajiv Shakdher, who headed the bench, favoured striking down the marital rape exception and said it would be tragic if a married woman’s call for justice is not heard even after 162 years since the enactment of the Indian Penal Code, Justice Shankar said the exception under the rape law is not unconstitutional and was based on an intelligible differentia having a rational nexus with the object of the exception as well as section 375 (offence of rape) of the Indian Penal Code (IPC) itself.
The petitioners had challenged the constitutionality of the marital rape exception under section 375 of the IPC on the ground that it discriminated against married women who are sexually assaulted by their husbands.
Under the exception given in section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.
