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Delhi High Court’s Split verdict on Marital Rape opens up Substantial question of law for Apex Court

Socio Legal Corp

Written by: Neha Virmani

Quorum of two judge bench of Delhi HC comprising of Justices Harishankar and Rajiv Shakdher while hearing a batch of petition over the complicated issue pertaining to Section 375 Exceptions which talk about “Martial Rape”, had a split verdict and thus, they opened the case for appeal to Apex Court on the bases of “involvement of Substantial Question of Law.”

– Contentions raised before the court:

The case was filed by NGOs RIT Foundation, All India Democratic Women’s Association and two individuals, who challenged the constitutionality of the exception provided u/s 375 IPC.

The bench has appointed Adv. Rebecca Johns & Rajeshekar Rao as “Amicus Curiae” who also contented against the validity of provision upholding Martial Rape not as an offence, as both argued in favor of striking down the provision.

– Contentions Presented by Solicitor General of India on behalf of CG:

SGI Tushar Mehta appraised the court with the steps taken up by Central govern. regarding the provision. As he stated that central government is reviewing IPC and it’s provisions and further have asked opinion of state government and other stakeholders in that regard. Thus, requested the court to reserve the proceeding.

– Affidavit filed by Central government

 It was most respectful submitted by CG that “taking a decision merely based upon the arguments of few lawyers may not serve the ends of justice, “consultation process through legislative proceeding would be more fruitful rather than taking a strict legal approach.

– Contradictory view of Division Bench of Delhi High Court

On one hand where J. Harishankar had a view that exception u/s 375 is based on intelligible differentia thus is constitutionally valid. However J. Rajiv had a negative view and held that the exception is unconstitutional u/a 14, 21 of constitution.

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