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Wednesday, May 25, 2022

Centre urges Delhi HC to put off marital rape hearing: Issue involves broad implications

The Centre stated that any assistance from it can be meaningful and effective only after such consultative process takes place.

Written by Sofi Ahsan | New Delhi |
Updated: February 4, 2022 3:38:47 am
The court has been hearing the matter since last month on a daily basis. (File)

Urging Delhi High Court to defer the hearings in a case seeking criminalisation of marital rape to await the outcome of a consultative process with stakeholders, the Centre on Thursday said the question involved “will have far-reaching socio-legal implications in the country”. It said the matter needs a comprehensive approach rather than a strictly legal one.

While the Centre’s counsel have made repeated requests in the court in the last few weeks for adjournment of the proceedings, the Centre for the first time placed its request on record by way of an affidavit on Thursday.

The Ministry of Home Affairs said in an affidavit before the court, “…considering the social impact involved, 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…taking a decision merely based upon arguments of (a) few lawyers may not serve the ends of justice.”

Undertaking to provide a time-bound schedule, within which it will carry out the consultative process on the issue, the Centre said the matter has been pending since 2015, and if it waits for such “fruitful exercise” for some time, no prejudice would be caused and it will be possible for the government to assist the court meaningfully.

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The division bench of Justices Rajiv Shakdher and C. Hari Shankar has, for the past few weeks been hearing the petitions challenging Exception 2, which protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under Section 376 IPC.

Explained

Govt’s stand earlier

Stating that what “may appear to be marital rape” to a wife “may not appear so to others”, the Centre had, in 2017, submitted that striking down Exception 2 under Section 376 IPC “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. It also cited “rising misuse of Section 498A of IPC” — cruelty by husband or his relative against a woman — to show how laws dealing with violence against women can be misused “for harassing the husbands”.

While the matter has remained pending since 2015, and the government submitted its stand in 2017, the Centre last month told the court that it wants to hold a consultative process with stakeholders and place a fresh and comprehensive stand before the court.

Stating that socio-legal implications of criminalisation of marital rape needs an exercise of a meaningful consultative process with various stakeholders on several aspects, the Centre, in the affidavit, said that no other stakeholders are before the court other than the few affected parties.

“Both the executive and the legislature are equally concerned and committed to the protection of fundamental rights of its citizens. However, it is the considered opinion of the Central Government that this Hon’ble Court can be assisted only after a consultative process is undertaken by the Central Government with all stakeholders, including all the State Governments,” reads the affidavit.

The Centre stated that any assistance from it can be meaningful and effective only after such consultative process takes place. “Absence of any such consultative process by the executive/ legislature, may result in some injustice to one section or the other,” it said.

The court had earlier told the Centre that the case has remained pending since 2015 and needs to be heard finally for a final adjudication. It had also told the Centre that it will continue with hearing arguments from the other parties in the meantime. The government was expected to begin arguments in the case next week.

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