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New Delhi: The Delhi high court has asked the Union government 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 Union government has to say ‘yes’ or ‘no’, citing that in issues such as the present one deliberations will not end otherwise.
“In a matter like this, they (the Union government) 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.
Justice Hari Shankar also advised that the court has to take a “dispassionate view in this.”
“Let us not have these caveats. I don’t see how the provision says in the context of wife, rape is permissible,” he said, referring to an exception in Section 375 which is interpreted to mean that sexual intercourse by a husband with wife as not rape and hence, could it be seen as giving protection from the offence of rape.
The court also asked after precedence, reported LiveLaw.
“Are there any decisions in the past where the statute which has said that an act is not an offence, has been quashed or struck down by the Court, either Supreme Court or High Court? We have cases like sec. 377 where the act was an offence which has been struck down. I want to know whether we have any precedent in the past where we have some guidelines as to how courts have looked at such a situation where the statute does not categorise it as a particular offence and it has been struck down by a Court,” Justice Hari Shankar asked.
Justice Shakdher also questioned the courts’ role here.
“‘The arguments which are to be developed further is that if there is no precedent, does it mean that every Court evolves its own precedent? And there are not one but several cases where Supreme Court has struck down even constitutional provisions, what to talk about the statutes which deal with civil obligations,” he said.
The Union government, 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.
Union government standing counsel Monika Arora had told the bench that it 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.
(With PTI inputs)