The Delhi High Court on Monday sought to know whether the issues raised before it in petitions seeking to make marital rape an offence were similar to those being heard by the Supreme Court. A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar posed the query to the parties and said it would be “highly improper” for it to continue hearing this matter after it was told that the apex court was also hearing the marital rape issue as a whole. “We would like to see the main petition. If the same issue is being considered by the Supreme Court, we cannot over lap,” the bench said.
Advocate Karuna Nandy, appearing for petitioner NGOs RIT Foundation, All India Democratic Women’s Association, said the apex court has been hearing a plea questioning the validity of a provision under the IPC permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years. “But, here we have challenged the constitutionality of section 375 (rape) of the IPC on the ground that it discriminated against married women being sexually assaulted by their husbands,” she submitted.
To have a clarity on the issue, the bench sought the presence of advocate Gaurav Aggarwal, who appeared for petitioner NGO Independent Thought before the Supreme Court, before it on September 8.
Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other. The high court had earlier agreed to examine the issue raised in PILs by NGOs RIT Foundation, All India Democratic Women’s Association and a man and a woman, who have sought striking down of the exception in the Indian penal law that did not consider sexual intercourse with a wife, not less than 15 years of age, as rape. It had earlier allowed two intervention applications, one in support of pleas to make marital rape an offence and the other opposing it.
The Centre has opposed the main petitions saying marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands. The Centre, in an affidavit filed through central government standing counsel Monika Arora and Kushal Kumar, has said the Supreme Court and various High Courts have already observed the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
Earlier, it had defended its legislation saying child marriages were taking place in India and the decision to retain a girl’s minimum age as 15 years to marry was taken under the amended rape law to protect a couple against criminalisation of their sexual activity.