Marital rape case: Can’t fold hands and just sit back, says Delhi HC

A bench of justices Rajiv Shakdher and Hari Shankar made this remark during an ongoing hearing on a batch of petitions seeking to decriminalise marital rape.

The Delhi high court on Thursday said that it cannot fold its hands and sit when people are approaching it with a problem in a particular legislation.

In India, marital rape is not defined in any statute or law. However, rights activists want it to be made a criminal offence.

The court’s remark came during an ongoing hearing on a batch of petitions seeking to decriminalise marital rape when an NGO argued that criminalising marital rape has a social impact which has to be decided by the legislature, and not by courts due to lack of their competence in the matter.

A bench of justices Rajiv Shakdher and Hari Shankar, while hearing a bunch of pleas seeking to criminalise marital rape, said the argument by the NGO, Men’s Welfare Trust, is “vague” as the bench is examining the legal aspect of the problem and not the social or psychological impact.

The court said that it can only “look into” the factors that have gone into the framing of a particular legislation, but ultimately the provision has to be tested on the anvil of the Constitution.

“This argument is vague… It is a legal issue before us… Events have happened… Legislatures steps in frames an Act, Rules whatever is required. What goes into the framing of the legislation is something we can look at while looking at a provision or statute. But for us it is that provision that we are examining and testing it against the Constitution. That’s all to it,” justice Shakdher remarked.

Saying that one of the petitioners is a live example where she has alleged abuse against her husband but could not proceed due to the exception in the rape law, the court remarked, “…Forget about the PIL, she says that she is not being able to proceed further because of the exception in Section 375 of the Indian Penal Code. So are we to tell her no we can’t examine whether you are right or wrong? We can’t…We need to examine it.”

Exception 2 of Section 375 IPC decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

The court asserted that it is not saying that its decision will not have an impact, but when it has a matter, the same has to be decided against Article 14 and Article 21 of the Constitution.

The bench is currently hearing PILs filed in 2015 by NGO RIT Foundation, All India Democratic Women’s Association and two individuals who have 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.

Earlier during the hearing, advocate J Sai Deepak, appearing for the NGO, said that the issue of criminalising marital rape should be kept out of the domain of the courts for the purposes of judicial legislation because the court is not in a position to accommodate or at least share multiple points of view for multiple reasons.

“In any case, this is a matter which requires people who undertake gender studies to contribute to it,” he said.

Justice Shakdher said, “How many years has this provision been there in the statute? There has to be a perspective and a sense of proportion. What do people do when they say that they are suffering, where do they go? That is in every legislation no? You can’t shut your doors no.”

“If the argument has to be accepted, then we must fold our hands and say that this is the job of the legislature….we will do nothing,” the judge added.

The matter will continue on Friday.