The Delhi High Court on Monday directed the Centre to take a stand on a plea seeking to criminalise marital rape. The high court has been hearing a batch of pleas seeking to remove the second exception of the Indian rape laws which exempts a husband from being penalized for raping his wife.
The high court told the Centre that "someone has to take a yes or no-call" on this issue. The bench comprising Justices Rajiv Shakder and C Hari Shankar said there were only two ways to decide this issue: either the high court took a call, or if the legislature intervened.
If the legislature intervened and criminalised marital rape, then that decision too would be challenged before a judicial forum, the high court observed.
"We don't claim to be the repository of wisdom but it's our job as a constitutional court to decide all lis which comes before us. We are still listening," Justice Shakdher said.
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The Delhi High Court is hearing a batch of four pleas that have challenged Exception 2 to Section 375 of the India Penal Code (IPC) which says: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."
The ongoing hearing is the second round of arguments on the same plea which was filed in January 2015. The arguments, in this case, were almost over before proceedings were halted due to the COVID related pandemic. The ongoing hearing in the high court is a resumption of the stalled hearing.
In 2017, before the proceedings came to a grinding halt, the Centre had opposed criminalizing marital rape on the grounds that it would have "a destabilizing affect on the institution of marriage".
In its affidavit filed on February 3, it backtracked on its earlier stance and has instead sought time in order to conduct an effective consultative process before assisting the court on the issue.
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Need to conduct an effective consultative process: Centre to HC
The Centre today reiterated its request for more time saying that the commitment to protect and maintain women's dignity was the government's priority since they were the "foundation of any cultural civilization."
Solicitor General Tushar Mehta, representing the Center, said that the government was not given any time to "deliberate on the issue". He added that the state government nor any other stakeholders were parties before the high court in the present matter.
The legislature and the executive are concerned with the issue, however, the Centre could offer "meaningful" assistance only after the participation of all stakeholders, Mehta told the high court.
The Centre asserted that "no prejudice would be caused" if the matter, which has been pending since 2015, could wait for the government to complete its consultation process. The government further told the court that the plea seeking to criminalise marital rape "may not be treated merely as a question concerning the constitutional validity of a statutory provision as the subject matter has and will have very far-reaching socio-legal implications in the country."
"…Considering the social impact involved, the intimate family relations being the subject matter and this Hon'ble Court not having the privilege of having been fully familiarised with ground realities prevailing in different parts of Society of this large, populous and diverse country, taking a decision merely based upon the arguments of few lawyers may not serve the ends of justice," the February 3 affidavit read.
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