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Wednesday, May 18, 2022

Centre seeks more time from Delhi HC to formulate stand on marital rape

The court had last week said that it will not wait for the outcome of the government’s “comprehensive exercise to make amendments in the criminal laws” as that consultative process would take several years.

Written by Sofi Ahsan | New Delhi |
Updated: January 18, 2022 4:38:31 am
DelhiEarlier, the Delhi High Court had observed that the nature of a relationship cannot put it on a different pedestal when it comes to dealing with cases of marital rape. (File photo)

The Centre on Monday told the Delhi High Court that it would need some time to formulate its stand on marital rape in response to the case challenging the Exception 2 in IPC Section 375 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under Section 376 of the IPC.

“We have to formulate our stand and place a considerate stand before your lordships. Considering that it is a 2015 matter, if your lordships can grant us a reasonable time. This might need a little consultation etc,” submitted Solicitor General Tushar Mehta before the division bench of Justice Rajiv Shakdher and Justice C Hari Shankar.

Mehta had last week also made a similar request before the court which has decided to continue with hearing the arguments in the case. The court has been hearing the matter, which has remained pending for many years now, on a daily basis since last week. Centre in its earlier response, filed in 2017, has opposed the petitions.

The court in response to Mehta’s submissions on Monday said that since the arguments in the case have started, it would like to conclude the matter. However, Mehta submitted that filing of “a less discussed or consulted stand” by the government may not be appropriate.

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“We will allow all other counsels to finish which will give you a little more time. Let me finish with what the counsels who are ready, let them argue whatever has to be argued, you come back, we will then decide how much time to give you then,” the court told Mehta.

The court also said, “In a matter like this, they [Centre] have to in principle say ‘Yes’ or ‘No’ because if they don’t, however much we may deliberate, this is not going to come to an end.” It also said that there are some matters “for whatever reasons” the court ultimately decides “one way or other” and that is how they get resolved.

Submitting that there has to be a consultative and considered view, Mehta submitted, “In fact, a ‘yes’ or ‘no’ is the end product of a consultative process. I am seeking a reasonable time considering several intervening factors.”

The court had last week said that it will not wait for the outcome of the government’s “comprehensive exercise to make amendments in the criminal laws” as that consultative process would take several years.

Stating that what “may appear to be marital rape” to a wife “may not appear so to others”, the central government in 2017 had submitted that striking down the exception “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. It had also cited the “rising misuse of Section 498A of IPC”— cruelty by husband or husband’s relative against a woman—to show how laws dealing with violence against women can be misused “for harassing the husbands”.

Senior Advocate Rajshekhar Rao, an amicus curiae in the case, on Monday resumed submission of arguments in the case and will continue on Monday. During the hearing, Justice Shankar asked Rao to address the court on whether there are any court decisions where the statute has said that an act is not an offence and same has been struck down by the court.

“We have cases like 377 where the act was an offence, which has been struck down… I want to know whether we are in a tabula rasa here or is there any precedent in the past so that we get some guideline how courts have looked at such a situation where the statute does not categorize it as a particular offence and it has been struck down by a court,” said Justice Shankar.

Justice Shankar also said that prima facie he feels that the it is not that the “exception is carving out a difference between a married woman and unmarried woman. The exception is carving out a difference between an act of sexual intercourse, committed without the willingness or consent of the woman, being committed within the parameters of a marital relationship and a non-marital relationship.”

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