Delhi HC grants two weeks to Centre to state stand on criminalising marital rape

New Delhi, February 7

The Delhi High Court on Monday granted two weeks to the Centre to state its stand on petitions seeking criminalisation of marital rape following Solicitor General Tushar Mehta’s submission that the government is neither in favour nor against striking down the immunity granted to husbands under the Indian Penal Code.

Mehta emphasised that a “holistic view” has to be considered on criminalising marital rape which is a sensitive socio-legal issue and a request for deferring further hearing was not unjustifiable.

He also clarified that the Centre’s stand on the petitions was reflected in its last affidavit seeking time to undertake a consultative process for a decision.

“It is not the central government’s stand that it (the exception) should either go or it should remain,” he said.

“I am saying neither… The central government’s stand is reflected in the last affidavit which we have filed. Let it not be said that we are in favour of retaining (or) we are deleting it,” he added.

“We worship women. It is possibly the only country where we worship women but while dealing with a sensitive socio-legal statutory provision, a little more holistic view is called for without which is not possible for central government to render assistance,” Mehta submitted.

A bench headed by Justice Rajiv Shakdher, which is dealing with the petitions seeking to strike down the exception granted to husbands under the Indian rape law, observed that the issue has to be decided either by the court or the legislature and granted two weeks to the Centre to formulate its stand.

“We don’t claim to be a repository of all wisdom but it is our job as a Constitutional court to decide a lis which comes before us… We don’t even know what call we are going to take at the moment (on the issue),” said the bench, also comprising Justice C Hari Shankar.

“We will give you two weeks. You come back. As a court, it does not gel with us that we keep the matter pending,” remarked the court which listed the case for hearing on February 21.

“The central government has to take a decision. The legislature is the third wing… this is a matter where we want to hear you,” said Justice Shakdher.

The court was 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.

Mehta asserted that the protection of the fundamental rights of women was a matter of priority and the present petitions should not be treated as merely concerning the validity of a constitutional provision.

“We are dealing with a larger issuehellip;The subject matter has very far-reaching socio-legal implications in the country. None of us can take it as a mere validity challenge,” he submitted.

“It affects human lives. We are entering into the bedroom. We must, if protection of fundamental rights of women so requires, answer (questions of) ‘how’, ‘to what extent… We have to take a holistic approach,” Mehta said.

Senior advocate Colin Gonsalves, appearing for the petitioner woman, argued that the time has come to redress the most significant crime against women without any qualifications.

He also relied on the NCRB (National Crime Records Bureau) data to highlight the high number of reported instances of sexual offences committed by “family members”, “live-in partners” and “separated husbands”.

Last week, the Centre had filed an affidavit urging the court to defer the hearing on the petitions, stating that criminalising marital rape has very far-reaching socio-legal implications in the country and a meaningful consultative process with various stakeholders including the state governments is needed.

It had stated that the Centre was committed to protecting “the liberty, dignity, and rights of every woman who is the fundamental foundation and pillar of a civilised society” and any assistance by the government can be meaningful only after consultative process with the participation of all stakeholders.

The affidavit had said the first petition was filed in 2015 and the provisions whose validity is challenged is in existence since inception and it was only because one of the petitioners suddenly mentioned the matter for final hearing during the pandemic, that the hearing has commenced leaving no time for the Centre to deliberate upon the issues and implications involved with all the stakeholders as the exercise takes a reasonable time.

In its 2017 affidavit, the Centre had opposed the pleas submitting 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 husbands.

However, the Centre told the court in January that it was “re-looking” at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago.

The court had said that the central government needs to make up its mind concerning its position on the issue and subsequently asked it to inform whether it wished to withdraw its earlier affidavit filed in the matter in view of its latest stand.

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