Clarify stand on marital rape criminalisation: Delhi HC tells Centre

PTI, Jan 17, 2022, 8:29 PM IST

New Delhi: The Delhi High Court on Monday asked the Centre to clarify its position in principle on the issue of criminalising marital rape after the government sought time to formulate and place its “considered stand”.

Justice Rajiv Shakdher, who is heading the bench dealing with a batch of petitions challenging the legality of the marital rape exception in the Indian Penal Code (IPC), said that the Centre has to say “yes or no” as in issues such as the present one, deliberation does not end. “In a matter like this, they (Centre) have to in principle say yes or no because if they don’t, however much they may deliberate, it is not going to come to an end,” the judge said.

Solicitor General Tushar Mehta said that it will not be appropriate to place before the court a “less discussed and consulted stand” and time was needed to undertake the process of consultation.

“I don’t mind that (consultation) but they have to take a decision which way they are going… there are some matters, for whatever reasons, I think the court ultimately decides one way or the other and that’s how it gets resolved. You take your time,” Justice Shakdher observed.

“Yes and no is the end product of consultation,” responded the solicitor general who also submitted that “nothing imminent was going to happen within a couple of weeks”.

“We have to formulate our stand and place our considered stand for your lordship and considering that this a 2015 matter if your lordship can grant us a reasonable time. This might need a little consultation etc,” the solicitor general said.

The bench, which also comprised Justice C Hari Shankar, said that it would continue to hear other lawyers appearing in the case which would give time to the Centre. “You come back. We will decide how much time to give you then,” the bench told the solicitor general.

The Centre, on January 13, had told the high court that it was considering a “constructive approach” to the issue of criminalising marital rape and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.

Central government standing counsel Monika Arora had told the bench that the Centre was undertaking a comprehensive task of amending the criminal law which includes section 375 (rape) of the IPC.

In its additional affidavit filed by the Under Secretary in Ministry of Home Affairs, the Centre had asserted that it is “already seized of the matter” and that the marital rape exception could not be struck down only at the instance of the petitioners as the principles of natural justice required a ”larger hearing of all stakeholders”.

The bench is hearing PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.

Justice Shankar said that there should be a “dispassionate” attitude in the case and that the issue of criminalising marital rape should prima facie be viewed from the perspective of the “act” and not of a married or unmarried woman. The judge reiterated that a married relationship entailed the expectation of intercourse, which was legally and socially recognised.

Senior advocate Rajshekhar Rao, who is assisting the court as an amicus curiae, submitted that there was no reason to preserve the marital rape exception.

The amicus argued that a married cannot be denied the right to prosecute her husband if she believed that she was raped and in case of denial of a conjugal relationship, the remedy before the spouse is to file a plea for restitution and “not force himself upon her”. He had earlier said that the foundation of section 375 (rape) of the IPC was the lack of consent and there was no reason to give lessor protection against non-consensual intercourse to a married woman.

He had thus argued that the marital rape exception in law was arbitrary and violated Article 14 and Article 21 of the Constitution.

The central government, in its earlier affidavit filed in the case, has said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands.

The Delhi government has told the court that marital rape was already covered as a ”crime of cruelty” under IPC.

The petitioners have challenged the constitutionality of the marital rape exception under section 375 IPC on the ground that it discriminated against married women who are sexually assaulted by their husbands.

The hearing in the case will continue on January 18.