What was the application in Delhi High Court
An application was filed in this regard in the Delhi High Court. There is a debate going on in the country for the last several years that how right is it to make marital rape an exception in the IPC? There was a demand from the High Court to bring marital rape as a crime. If the girl is not married, then the relationship against her will comes under the category of rape, then why should the relationship against her will not remain in the definition of rape if she is married.
High Court’s fractured order
The verdict given by the Delhi High Court on May 11 in this matter was divided. In a two-judge 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 Rajiv Shakdher had said that marital rape violates the right to equality and life. Justice C Harishankar had said that this does not violate the constitutional right. The High Court had given liberty to the petitioners that they can file an appeal in the Supreme Court in this matter. After this the matter has come before the Supreme Court.
What does the law say in rape cases?
Rape is defined in section 375 of IPC. In the same, marital rape i.e. the relationship made by the husband with the wife of more than 15 years of age has been considered as an exception of rape, that is, a case of rape cannot be filed against the husband. The law says that if a man has a relationship 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 necessary. That is, a relationship made with the consent of a girl below 18 years of age will also be rape. A Supreme Court judgment came in October 2017 and this exception was set aside by the Supreme Court. The Supreme Court in its judgment said that if the wife is between the age of 15 to 18 years and relations are made 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 provision.
Kerala High Court one step ahead
The decision of the Kerala High Court takes a step forward. The High Court said that if the husband enters into a relationship against the will of the wife, that is, marital rape, then it will be a strong ground for divorce. In this case, the Family Court had given the decision of divorce in favor of the wife on the ground of cruelty and the matter reached the High Court. The High Court said that having a relationship against the will of the wife is marital rape. It cannot be punished but it is within the scope of mental and physical cruelty. This is grounds for divorce.