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The Delhi High Court on Wednesday, 11 May, delivered a split verdict in the marital rape exception case with both judges on the two-judge division bench arriving at different conclusions.
Justice Rajiv Shakdher held that Exception 2 to Section 375 – which says that any sexual acts by a husband with his wife are not rape – violates Articles 14, 15 and 21 of the Constitution, and therefore needs to be struck down.
However, Justice C Hari Shankar disagreed and held that there were no grounds for the court to strike the exception down, which was justified under Article 14 because there was an intelligible differentia created by marriage.
What happens in this case? What do precedents say? Here's a short primer.
What Happens After a Split Verdict?
In the event of a split verdict like this, the matter has to be referred to a third judge of the high court for a decision either way. The third judge goes through all the arguments made by both sides, the submissions of the amicus curiae, and then arrives at their decision.
As there is a somewhat binary question at play here – to strike down the marital rape exception or not – their decision will tip the scales towards the decision made by either Justice Shakdher or Justice Hari Shankar.
In 2018, for instance, a two-judge bench of the Madras High Court saw a split over the legality of a decision of the Tamil Nadu Assembly Speaker. The matter had to be referred to a third judge, who sided with one of the two judges a few months later.
What Procedure Is Followed?
Once the two judges have delivered their judgments with a difference of opinion, the ball is then in the court of the chief justice of the high court. They have to allocate the matter to a third judge on the administrative side, which does not require any further input from either of the original judges.
Will It Be Heard By a Three-Judge SC Bench?
Both Justice Shakdher and Justice Hari Shankar say in their judgments that they grant leave to appeal to the Supreme Court.
However, till the third judge has delivered their verdict, there is no decision of the high court which can be appealed, as there is no majority decision either which way.
Once the third judge delivers their opinion, the matter can then be appealed.
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