Centre gets 2 more weeks to file response on marital rape in Delhi high court

The Union govt said that while it is neither “yes” or “no” from their side on the issue at the moment in the wake of the consultative process, it is not withdrawing its earlier stand filed in 2017 that it opposes the petitions seeking to criminalise marital rape

The Delhi high court on Monday granted two weeks to the union government for holding discussions on the demands for criminalising marital rape, and deferred the hearing on a clutch of petitions till February 20.

The Delhi high court deferred the hearing on a clutch of petitions till February 20. (HT Archive)

The Union government told the court that while it is neither “yes” or “no” from their side on the issue at the moment in the wake of the consultative process, it is not withdrawing its earlier stand filed in 2017 that it opposes the petitions seeking to criminalise marital rape.

“The government is neither in favour nor against striking down the immunity granted to husbands under the Indian Penal Code (IPC). It is not the central government’s stand that it should either go or it should retain…I am saying neither... The central government’s stand is reflected in the last affidavit which we have filed. Let it not be said that we are in favour of retaining (or) we are deleting it,” solicitor general Tushar Mehta told a bench of justices Rajiv Shakdher and C Hari Shankar.

Last week, the Centre filed a fresh affidavit seeking time to conduct a consultative process with the state governments and the stakeholders, underlining that any judicial decision, without allowing the government complete the discussion “may not serve the ends of justice”.

It had said that it is not in a position to assist the court meaningfully for want of an effective consultation process, lack of which would result in “injustice to one section or another”.

On Monday, Mehta told the court that marital rape is a sensitive issue and needs a holistic view. Reading out the Centre’s fresh affidavit, he said that the issue requires deliberations as it is a socio-legal issue, and will impact 135 crore Indians in one go.

“….please don’t treat this as a mere constitutional validity issue. It affects human life. We are entering into a bedroom…Mere legal approach in the issue must not be taken. Ultimately these are the views of some lawyers….We do not know how your judgment may impact human rights...But while dealing with a sensitive socio-legal issue, a more holistic approach is called for,” Mehta said.

However, the court observed that the issue has to be decided either by the court or the legislature, and granted two weeks to the Centre to formulate its stand.

“We don’t claim to be a repository of all wisdom but it is our job as a Constitutional court to decide a list which comes before us... We don’t even know what call we are going to take at the moment (on the issue),” justice Shakdher said, adding that the court can only give two weeks to the Centre to complete consultations.

“We will give you two weeks. You come back. As a court, it does not gel well that we keep the matter pending..You come and state your position, we have to take a call..,” remarked the court. The bench added that whatever judgment it delivers would be an input for the government.

Justice Shakdher said that currently the situation is in “animated suspension” and if the Centre does not come back with a discussed stand within two weeks, it would consider the government’s stand of 2017.

The high court is conducting a marathon hearing for the past one month on a bunch of public interest litigations (PILs) filed in 2015 by NGO RIT Foundation, All India Democratic Women’s Association and two individuals who sought to strike down the exception in the 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 IPC decriminalises marital rape and mandates that sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape.

In an affidavit filed on February 3, the Centre urged the Delhi high court to defer hearing in the matter, saying the issue has a major social impact and meaningful consultative process with various stakeholders and state governments must be done as it cannot be decided merely upon the argument of few lawyers.

Last week, the solicitor general told the court that it is taking a “constructive approach” in the matter, adding that a half hearted reply by the government would directly affect the citizens of the country.

Last Wednesday, union minister for women and child development, Smriti Irani, in a response to Communist Party of India member of Parliament Binoy Viswam’s supplementary query on marital rape, said in Parliament that the protection of women and children is a priority but condemning every marriage as violent and every man a rapist is not advisable.

Even though the Union government has several times orally requested the court to defer the hearing citing no imminent implications, it made the first formal request in its affidavit of February 3.

Saying that it is committed to “fully” and “meaningfully protect the liberty, dignity and rights of every woman”, the Centre sought to defer the hearing for a “stipulated time” and promised to give a time-bound schedule within which the government will carry out such consultative process with the stakeholders.