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An appeal has been filed in the Supreme Court challenging the exception in the law that exempts husbands from being prosecuted for non-consensual sexual intercourse with their wives. Khushboo Saifi, one of the petitioners before the high court, filed the appeal. The high court delivered a split verdict on the issue on May 11. Both Justice Rajiv Shakdher and Justice C Hari Shankar concurred in granting a certificate of leave to appeal to the Supreme Court, as it involves substantial questions of law that require a decision from the top court.

Justice Shakdher favored striking down the marital rape exception as “unconstitutional,” while Justice Shankar said the exception is not “unconstitutional” and is based on an intelligible differentia. The petitioners challenged the constitutionality of the marital rape exception under Section 375 IPC, claiming it discriminated against married women who are sexually assaulted by their husbands. The exception in Section 375 of the IPC states that sexual intercourse or sexual acts by a man with his wife, if she is not a minor, is not considered rape. The bench delivered a 393-page split verdict in the matter.

In his 192-page opinion, Justice Shakdher expressed regret that he was not able to persuade Justice Shankar to his point of view. In his 200-page dissenting opinion, Justice Shankar said the challenge to the vires of the second exception to Section 375 and Section 376B of the IPC and Section 198B of the Code of Criminal Procedure must fail. He expressed lasting regret that their differences regarding the outcome of these proceedings appear irreconcilable.

Justice Shakdher also commented that to the petitioners and their supporters, he would say that while they may seem to be in the minority now, things will change, if not now, someday. To the dissenters, he said that every dissent adds flavor and acuteness to the debate at hand, which assists the next court in arriving at a conclusion closer to justice and truth.

The court’s verdict came on PILs filed in 2015 and 2017 by NGOs RIT Foundation, All India Democratic Women’s Association, and two individuals seeking to strike down the exception granted to husbands under Indian rape law.

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