The judge, who headed the bench, favoured striking down the marital rape exception.
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.
In his verdict, Justice Shankar said, “If, therefore, the petitioners feel that the act of a husband compelling, or even forcing, his wife to have sex with him, against her will or consent, should amount to ‘rape', and should attract section 375, or that the other applicable provisions in civil and criminal law are insufficient to deal with such a situation, they would have to take up the issue in Parliament, not in court.” He said should the legislature be convinced of their case, the petitioners' grievances may well be met.
“The Parliament is empowered to legislate and frame a new law for the said purpose. Equally, the Parliament may also deem it appropriate to do away with the impugned exception. We, however, cannot do so, unless the impugned exception is constitutionally vulnerable. That, in my considered opinion, it is not,” Justice Shankar said.
He said given the nature of the marital institution in the socio-legal milieu of the country, if the legislature is of the view that for preservation of the marital institution, the exception should be retained, then the court would not be in a position to strike down the exception unless it were to hold per contra, that the view of the legislature is incorrect.
“That, however, we cannot do, as it would amount to substituting our value judgement for the value judgement of the legislature, which, in a democracy, is unquestionably entitled to precedential preference, as the voice of the legislature is, classically and constitutionally, the voice of the people,” Justice Shankar said.
He said the court cannot substitute its view for that of the legislature and hold definitively that treating non-consensual sex by a husband with his wife would not imperil or threaten the marital institution.
“Neither do we have the wherewithal, or the resources, to undertake an incursive study into the issue, nor, for that matter, can we legitimately do so. The consideration and the concern of the legislature are legitimate. The legislation must, ergo, be upheld,” he noted.
He also said the legislature, at its command, has the vast arsenal of State resources and the legislation is not an overnight exercise, least of all when it involves the decision to define an act as an offence.
"If, therefore, the legislature, after interaction with stakeholders and after conscious deliberation and debate, forms the opinion that introduction of the concept of ‘rape' into the marital sphere may imperil the institution of marriage, this court, at the instance of arguments of counsel, howsoever gifted, would, in my opinion, be thoroughly ill-equipped to hold otherwise," he said.
The court's verdict came on PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
NGO, Men Welfare Trust (MWT) had argued before the high court that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)