Delhi HC reserves verdict on marital rape criminalisation

The government told the court that it has written to all states and union territories, seeking their stand on the issue, but is yet to receive a response from any of them, in absence of which it cannot formulate its decision

With the Union government sticking to its position on the need for wider consultations with state governments and other stakeholders before taking a call on whether marital rape should be criminalised, the Delhi high court reserved its judgement on a batch of petitions demanding this.

The high court has been deliberating on a bunch of public interest litigation filed in 2015 by non-profit RIT Foundation, All India Democratic Women’s Association and two individuals who sought to strike down the exception in Indian rape laws on the grounds that it discriminated against married women who were sexually assaulted by their husbands. (Getty Images/iStockphoto)

It compared the union government’s stance to that of Trishanku, a mythological king who sought to create his own heaven, only to be suspended in limbo halfway.

On February 7, the court gave the government till February 21 to make its position clear, seeking a yes-or-no answer.

That wasn’t to be. The Union government’s affidavit sought more time for consultations, and asked that the hearing be deferred. So, the answer clearly wasn’t a yes. But it also wasn’t a no.

Responding to a specific query from the court, solicitor general Tushar Mehta clarified that the earlier affidavit of 2017, opposing pleas to criminalise marital rape, should not be treated as final as a decision is yet to be taken.

Saying that it would pass directions on March 2, a bench of justices Rajiv Shakdher and C Hari Shankar refused to grant more time to the union government for holding consultations and said: “There is no terminal date for ending the consultations.”

“During the course of the hearing, it was indicated to Mr Mehta that in an ongoing matter this cannot be possible as there is no terminal date. Counsel for parties has addressed the argument. Judgment is reserved. List for directions on March 2. Counsels are also directed to file their compilations,” the bench noted in its order.

The government told the court that it has written to all states and union territories, seeking their stand on the issue, but is yet to receive a response from any of them, in absence of which it cannot formulate its decision.

Mehta said that the situation is not that of Trishanku, but the Centre is in the process of deciding where it should be. He added that it would not be “prudent” for the central government to say a “yes” or a “no”.

“As narrated in the earlier affidavit, it was and it is a considered stand of the central government that the stand to be taken before this court by them can only be after consultation with all the state governments and other stakeholders. This is more so since the issues involved has a direct bearing on the society in general and is a part of the Concurrent List of the Seventh Schedule to the Constitution of India,” the fresh affidavit read.

It said that the union government has therefore sent a communication to all the chief secretaries of all the states and union territories, along with the National Commission for Women, seeking their response on the issue.

“The central government is awaiting the response from all of them. It is only thereafter that the central government will be in a position to take a stand before this court thereafter,” read the document filed by Shri Prakash, joint secretary at the home ministry.

In its affidavit, the government reiterated its commitment to protect the liberty, dignity and rights of every woman.

“It is, therefore, desirable that the final adjudication by this court in the present batch of petitions be deferred till the view of the stakeholders is received by the central government,” the affidavit read.

The high court has been deliberating on a bunch of public interest litigation filed in 2015 by non-profit RIT Foundation, All India Democratic Women’s Association and two individuals who sought to strike down the exception in Indian rape laws on the grounds that it discriminated against married women who were sexually assaulted by their husbands.

Exception 2 of Section 375 of the Indian Penal Code decriminalizes marital rape and mandates that sexual intercourse by a man with his wife, the wife not being under 18 years of age, is not rape.

On Monday, the court said that “endless” deferment cannot happen. It reiterated that this is a matter that will get closed either through the legal route or the legislative one.

The bench also gave examples of the challenges to section 377 and adultery in the Supreme Court, saying that the court gave its decision even when the Centre took a stand.

“As of now, the more I think of it, the more I am convinced…that you have to close it… We are not last repository of wisdom. The wisdom may perhaps lie elsewhere. But someone has to take a stand,” the court observed.

“Sometimes you have to take a decision and bite the bullet,” it remarked.

However, Mehta said that he would not be able to state anything beyond what has been mentioned in the affidavit.

The court said that it would then close the matter and give directions on March 2.

In mid-January, the union government informed the court that marital rape cannot be made into a criminal offence until the Centre’s consultation with all stakeholders is complete, paving the way for comprehensive amendments in criminal law instead of “piecemeal” changes.

Later, Mehta told the court that the government was taking a “constructive approach” in the matter and sought time from the court to reach a conclusion.

In Parliament on February 2, Smriti Irani, minister of women and child development, responding to Communist Party of India member of Parliament Binoy Viswam’s question on marital rape, said the protection of women and children is a priority, but condemning every marriage as violent and every man a rapist is not advisable.

On February 3, the government told the court that the issue of criminalizing marital rape involves a socio-legal impact and intimate family relations, which cannot be judged on the basis of legal arguments. It stated that a “comprehensive approach” was required.