SPLIT VERDICT, WHAT'S NEXT? GLANCING AT THE PROCEDURAL AFTERMATH

A two-judge bench of the Delhi High Court consisting of Rajiv Shakdher and C. Hari Shankar JJ., delivered its much-awaited verdict on the constitutionality of Marital Rape Exception (MRE) on 11th May 2022. The verdict turned out to be a split verdict, thus leading to a stalemate. 

Rajiv Shakdher J., pointing out one of the submissions elucidated that "in marriage, there is an “expectation of sex” i.e., a right to have sex absent consent would amount to resurrecting the Ghost of Lord Hale." Further laying down an important test to consider that- Whether the differentia between married and unmarried couples has a rational nexus with the object, which the main provision i.e. section 375 of the Indian Penal Code, seeks to achieve, that is, protecting a woman from being subjected to a sexual act against her will or her consent? While holding section 375 IPC unconstitutional, Rajiv Shakdher J., explained that the Doctrine of Classification is not applicable in the present scenario between a married and unmarried woman in case of rape, and is unreasonable and manifestly arbitrary in the eyes of the law.

Dissenting with the view as mentioned above, C. Hari Shankar J., opined that "Marriage is not a brick-and-mortar institution. It is an institution that epitomizes, at the highest level, the most sublime relationship that can exist between man and woman." Decidedly, it is not an “imposed conception”. C. Hari Shankar J., upheld the constitutionally of Marital Rape Exception.

With the grant of Special Leave by the division bench of the Delhi High Court, an appeal to the Supreme Court of India has been moved by Khushboo Saifi, one of the petitioners, on 17th May 2022, bearing Diary No.15792-2022.

Procedural Aftermath of Split Verdict

1.     Reference 

Whether in a writ petition or an appeal, a two-judge bench or more judges' bench passes a split verdict, the matter is referred to a larger bench of the same court to decide the issue at hand. The larger bench does not delve into the facts of the case rather they untangle the substantial question of law which led to a stalemate due to differences of opinion. Under the Code of Civil Procedure, section 98(2) discusses References to a larger bench of the court from the civil appeal where a split verdict has been passed. Similarly, under the Code of Criminal Procedure, section 392 discusses References to a larger bench of the court from the criminal appeal where a split verdict has been passed. Ensuing are a few case laws to elucidate the above mentioned:-

Ritesh Sinha v. State of Uttar Pradesh and Another [2019 SCC OnLine SC 956]

The investigation authority required the voice sample of the appellant for verification in this case involving the collection of monies from different people on the promise of jobs in the police. The learned CJM, Saharanpur via order issued summons to the appellant to appear before the investigating officer and to give his voice sample. This order of the learned CJM was challenged before the High Court of Allahabad, which negatived the challenge of the appellant. The appeal from the judgment of the High Court was heard and disposed of by a split verdict of a two-Judge Bench of the Supreme Court of India requiring reference in the present matter consisting of three-judge bench of Ranjan Gogoi, Former C.J., and Deepak Gupta and Sanjiv Khanna, JJ.

Union of India v. Central Water Commission [2013 SCC OnLine Del 133]

The Association of Junior Engineers, Central Water Commission, and its members working as junior Engineers were the beneficiaries of a majority opinion pronounced by the Central Administrative Tribunal. There being a split verdict between two members of the Tribunal, the matter was referred to a Larger Bench which opined that the correct course should be to refer the matter to a third member and not a reference to a Larger Bench, and in this way, the opinion dated January 10, 2001, pronounced by the third member became the majority opinion. Judgment passed by the third member of the Tribunal was moved by an appeal to the Delhi High Court. 

        2.     Appeal

It is not mandatory for a split verdict to always be referred to a larger bench of the same court. In some cases, whenever the split verdict is passed and High Court judges provide a certificate of leave along with the split verdict, the aggrieved appellant can also move to the Supreme Court of India. The Apex Court has wide jurisdiction to hear appeals from High Court and Lower Courts and Tribunals, involving interpretation of the Constitution of India (COI) or any substantial question of law in the matter (Articles 132- 136 of the COI). Ensuing are a few case laws to elucidate the above mentioned:-

Jamiruddin Ansari v. Central Bureau of Investigation and Another [(2009) 6 SCC 316]

The Full Bench of the Bombay High Court gave a split verdict with the majority view being that a private complaint filed under Section 9 of Maharashtra Control of Organised Crime Act, 1999 (MCOA) was independent of Section 23, and compliance with the provisions of Section 23 was not a precondition for the Special Judge to take cognizance of such private complaint. Aggrieved thereby, the State approached the Supreme Court of India via appeal against the split verdict passed by the Bombay High Court. 

Rajasthan Housing Board and Another v. Ratan Devi [2019 SCC OnLine SC 1013]

The appeal arose before the Supreme Court of India from a judgment of the National Consumer Disputes Redressal Commission (NCDRC). NCDRC restored the judgment of the District Consumer Disputes Redressal Forum, Jaipur (“District Forum”) dated 02-01-2014 directing the appellant to allot an LIG tenement in the Mansarover Scheme to the respondent against the payment of a balance of Rs 47,674 as mentioned in the allotment letter dated 30-4-1992. Previously, the State Consumer Disputes Redressal Commission (SCDRC) by a split verdict set aside the order of the District Forum.

Conclusion

Split Verdicts as a part of the judicial process play a fundamental role in vitalizing the independence of delivering justice without undue influence of judgment and reasoning of other judicial members. Judiciary is an integral organ of the government which maintains to be unhampered, which in return reflects the strength of the longest Constitution in the world. Access to justice is an unequivocal right of citizens and Indian statutes are drafted in such a way that the procedure eventually leads to the fulfillment of due process.