Indian court unable to decide if rape in a marriage should be legal. Right now, it is.
New Delhi — In a setback for activists seeking to make marital rape a crime in India, the Delhi High Court on Wednesday failed to deliver a verdict as the two members of the judicial panel hearing the case disagreed with each other.
One of the two judges, Justice Rajiv Shakdher, wanted to strike down an exception in India's rape law that says a husband cannot be charged with raping his wife. He argued that it violates the constitutional guarantees of equality, freedom, and liberty.
The other judge, Justice Hari Shankar, did not agree.
"This is unfortunate," Mariam Dhawale, General Secretary of the All India Democratic Women's Association, told CBS News about the split verdict, which she called a "big disappointment."
Section 375 of the Indian Penal Code, which defines rape, includes a clause that says: "sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Indian women's rights advocates have campaigned against the exception for years, insisting that forced sex should be regarded as rape, without exception.
Those who brought the case in the Delhi court told CBS News on Wednesday that they now plan to take it to the nation's Supreme Court.
"As per this law, the victim gets no recourse to justice if she is subjected to violent sexual attack by her husband," said Dhawale, who is among the activists who filed the petition against the law.
Some groups have opposed the legal bid to change the law, arguing that consent in marriage is always implied, and that removing the exception would lead to misuse of the rape law.
The Delhi court has held dozens of hearings in the case since 2015, when the petitions were first filed.
Marital or spousal rape is a crime in more than 100 countries, including all 50 United States. In 2017, the Indian government argued that making marital rape a crime could have a "destabilizing effect on the institution of marriage," and that it could become "an easy tool for harassing husbands."
Earlier this year the federal government said it had started consultations with state governments on the matter, buying it more time to clarify its stance.
On Wednesday, the government said it was taking a "holistic view" on the matter following the Delhi High Court's inaction.
Dhawale accused the government of using "delay tactics."