Case Law Details
RIT Foundation Vs Union of India (Delhi High Court)
Delhi High Court bench differed members differed in their views while hearing on a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape and referred the matter to Supreme Court as it involves substantial questions of law.
Justice Rajiv Shakdher held that Impugned provisions [i.e. Exception 2 to Section 375 (Rape) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down. In other words he held that Exception 2 to Section 375 (rape) of the Indian penal Code, which exempts husband from the offence of rape for forcible sex with wife, as unconstitutional.
Justice Hari Shankar said he did not agree with Justice Shakdher in and held that Exception 2 to IPC Section 375 does not violate the Constitution.
Justice Hari Shankar held that I am of the considered opinion that the petitions, as well as the challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the Cr PC, have to fail. The petitions, therefore, in my view, deserve to be dismissed, albeit without costs. He further agreed with Justice Rajiv Shakdher in his decision to grant certificate of leave to appeal to the Supreme Court in the present matter as it involves substantial questions of law and in Such Cases Supreme Court is the Authority in India who can decide such substantial questions of law.
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