[BREAKING] "Intelligible differentia, not 'consent' focal point in issue of marital rape": Delhi High Court expresses prima facie view

  • Sanya Talwar
  • 04:39 PM, 14 Jan 2022

The Delhi High Court today said that while deciding criminalisation of marital rape in the Indian law context, it is essential that the existing exception 2 of Section 375, Indian Penal Code (IPC) is looked at from perspective of whether it draws intelligible differentia instead of looking at it from the sole lens of "consent".

When Amicus and senior advocate Rajshekhar Rao told Court that the core issue is one of consent viz. marital rape, Justice Hari Shankar said that the statute does not provide immunity from prosecution to the husband who forces sex upon his wife.

"The Statute does not say absence of consent is irrelevant where there is a rape if perpetrator is husband. It only says that where perpetrator is husband, it is not rape," said Justice Shankar

He added,

"The entire argument is not noticing what is the issue before court in my prima facie view. Consent is NOT the issue here. The issue is marital relationship. That is a very relevant differentia... According to you marriage makes no intelligible differentia? I have many reservations on this. This is not like buying a glass of milk! This is a marriage!

The Court further insisted that the counsel must address the bench on whether the intelligible differentia which is one of a married couple and an unmarried one stands the test of law or not.

Yesterday, Justice Shankar had expressed strong reservations on the corollary drawn between a sex worker prosecuting her customer for rape and a married woman doing so against her husband upon being violated.


"That is a slippery ground there, Please understand that a person who will be punished due to this provision will be a man! Please don't keep going over how this man must be punished, must be punished! We have to exercise powers under Article 226," said Justice Shankar

The batch of plea's have been filed by NGOs RIT Foundation, All India Democratic Women’s Association, and two individuals challenging the constitutionality of exception 2 to section 375 of the IPC stating that it discriminates women who are raped and sexually assaulted by their husbands.

Case Title: RIT Foundation Vs. Union of India | Batch pleas

Read arguments by Amicus: "5 minutes before marriage, woman can call it rape, 5 minutes after marriage she cannot": Amicus Curiae urges Court to exercise powers under Article 226 
Read arguments by men's rights groups: "Other remedies available for legal recourse, laws misused": Mens Rights Groups contest inclusion of sexual violence against wives under "Rape"
Read Delhi HC's oral observations earlier: "Rape has to be punished if ingredients met. No concept of ‘Marital’ Rape in India”: Delhi High Court