What was the application in the Delhi High Court?
In this regard, an application was filed in the Delhi High Court. For the past several years, there has been a debate in the country that how much is it justified to make marital rape an exception in the IPC? The High Court was asked to criminalize marital rape. If the girl is not married then the relationship against her will comes under the category of rape, then if she is married then why the relationship against her will not be in the definition of rape.
Fragmentary order of High Court
The decision given by the Delhi High Court on May 11 in this case was divided. In a two-member bench, one judge said that it should be brought under the category of crime, while the other expressed the opposite view. This was the decision of the double bench of the High Court. Justice Rajeev Shakdhar had said that marital rape violates right to equality and right to life. Justice C Harishankar had said that this does not violate the constitutional right. The High Court had given freedom to the petitioners that they can file an appeal in the Supreme Court in this matter. After this, this matter has come before the Supreme Court.
What does the law say in cases of rape?
Rape is defined in Section 375 of the IPC. Along with this, marital rape i.e. the relationship between the husband and the wife of more than 15 years of age has been considered as an exception to rape, i.e. the case of rape cannot be registered against the husband. The law says that if a man has intercourse with any woman against her will, it will be rape. If the age of the woman is less than 18 years then her consent is not required. That is, a relationship made with the consent of a girl under the age of 18 will also be rape. The Supreme Court judgment came in October 2017 and this exception was rejected by the Supreme Court. The Supreme Court in its decision said that if the age of the wife is between 15 to 18 years and the relationship is established with her against her will, then the wife can file a case of rape against her husband. If the wife is an adult then she cannot file a case of rape against the husband under the existing legal system.
Kerala High Court a step ahead
The Kerala High Court decision goes one step further. The High Court said that if the husband enters into a relationship against the will of the wife, i.e. marital rape, then it will be a strong ground for divorce. In this case, the family court had given a verdict of divorce in favor of the wife on the basis of cruelty and the matter reached the High Court. The High Court said that having intercourse against the will of the wife is marital rape. It cannot be punished but it is within the scope of mental and physical oppression. This is a ground for divorce.