“Rape Laws Should Be Gender Neutral”: Delhi High Court Judge Who Supported Criminalisation Of Marital Rape

This week witnessed a very heated debated from both sides, after the Delhi High Court pronounced its split verdict in the criminalisation of Marital Rape PIL. 

Background:

The petitions for criminalisation of marital rape had been filed by NGOs RIT Foundation, All India Democratic Women’s Association and two individuals case – all got clubbed in 2015.

Men’s Rights NGO Men Welfare Trust (MWT) became intervenors in 2017 and were representing the matter as party in person. In 2022, nearly towards the end of arguments in the PIL, Rebecca John – who had openly backed Criminalisation of Marital Rape – was inducted as Amicus Curiae.

However, when MWT was directed to be represented by a lawyer in 2022, Advocate J Sai Deepak stepped in. Advocate RK Kapoor appeared on behalf of the other intervenor Hridaya NGO.

Delhi High Court Verdict (May 11, 2022):

The Delhi High Court bench delivered a split verdict where Justice Rajiv Shakdher held the exception unconstitutional, while Justice C Harishankar was not in favour of criminalisation of marital rape, and held that intelligible differentia existed and thus provision was not unconstitutional.

#MaritalRape | BREAKING: Split verdict in marital rape criminalisation issue by Delhi High Court.

Justice Shakdher: Hold the exceptional unconstitutional

Justice Harishankar: Intelligible differentia exists, Provision not unconstitutional

Source | @LawBeatInd

— Men’s Day Out (@MensDayOutIndia) May 11, 2022

Rape Laws Must Be Gender Neutral: Justice Rajiv Shakdher 

Justice Shakdher, who ruled in favour of striking down the marital rape exception (exception 2 to Section 375 of the Indian Penal Code), acknowledged the need of having gender neutral rape laws while adding that the steps are required to be taken by the Legislature or Executive in this regard, reported Livelaw. Shakdher said,

It is evident, like in other foreign jurisdictions, the Executive may have to provide sentencing guidelines for trial court judges to ensure greater consistency. Likewise, I also tend to agree with the counsel for the intervenors i.e., Messrs Sai Deepak and Kapoor that the law should be gender-neutral. These are steps that are required to be taken by the Legislature/the Executive.

Arguments by Advocate J Sai Deepak

Since the petitioners cited examples of several countries, whose jurisdiction has adopted criminalisation of marital rape, Sai Deepak argued that if the international norms and standards are to be applied as argued by the petitioners then the movement all over is towards enacting gender-neutral laws in the realm of sexual violence.

Sai Deepak also added that while Men Welfare Trust While actively campaigns for gender-neutral laws and the preservation of the institution of marriage, the petitioners had sought gender-specific prayers and the creation of gender-specific offences at the expense of marital institutions.

It was also submitted that the abuse of the provisions of Section 375 of the IPC has been recognised by the courts and, therefore, there is a need to introduce gender-neutrality in the sphere of sexual violence. Therefore, if Marital Rape Exception is struck down, it would only add to the existing inequities and injustice. It was also submitted that gender-neutral approach to such issues should be consistent with the calls for gender equity, added Livelaw. 

Accordingly, Justice Shakdher however also agreed with the submission made by Senior Advocate Colin Gonsalves and Advocate Karuna Nundy, counsel for the petitioners, that reforms in this regard cannot be cited as an impediment in the court striking down the marital rape exception which otherwise does not pass muster of the constitutional provisions. The Court said,

These are the next steps in the matter which the legislature has to take up. The court’s jurisdiction to examine the matter is not tied-in with these steps that the legislature may embark upon concerning sentencing and how investigation is to progress in matters involving marital rape.

As and when such steps are taken, I am sure they will attract the public gaze and attention of all stakeholders and if escalated to the court, may also require judicial examination. However, these are not matters presently within the ken of the court.

Speaking with Men’s Day Out, Amit Lakhani: President, Men Welfare Trust said,

The split judgement by Hon’ble Delhi High Court in Marital Rape PIL gives absolutely different perspectives by both Judges but both agree upon the need for gender neutral rape laws in India and infact during the course of arguments both the amici resonated the view on gender neutrality.

We have been advocating for gender neutral laws by replacing Man/Woman to Person & Husband/Wife to Spouse for a very long time now.

I believe that through this judgement there’s a strong message to the legislature to step in and act upon it.

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Marital Rape Verdict | Advocate J Sai Deepak | Other Side

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Marital Rape PIL | Read Written Submissions By Advocate Raj Kapoor For Hridey NGO, & Men Welfare Trust

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