Marital Rape Exception: Delhi High Court Grants Two Weeks Time To Centre For Deciding Its Stand

The Delhi High Court on Monday granted two weeks' time to the Central Government to decide and clarify its stand in a bunch of pleas challenging the exception of Marital rape under Section 375 of the Indian Penal Code.

The development came after Solicitor General of India, Tushar Mehta referred to the recent additional affidavit filed by the Centre wherein it had reiterated the request to defer hearing in view of the pending consultative process.

Marital Rape Exception: Centre Requests Delhi High Court To Defer Hearing In View Of Pending Consultative Process

Mehta told a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar that time was sought for providing a stipulated timeline within which the Central Government would conduct an effective consultative process in order to assist the Court on the issue.

Reading the contents of the affidavit, Mehta submitted thus: "The Government is committed to maintain and protect the dignity and liberty of every woman. That's the first priority. They are foundation of any cultured civilization like India. But here we are dealing with larger issue."

Mehta added that the marital rape issue needed a comprehensive approach wherein a consultation process is undertaken with all stake holders including all the State Governments, rather than taking a strict legal approach.

Furthermore, Mehta clarified that it is not the stand of the Central Government as to whether exception 2 to sec. 375 of IPC should go or be retained and that it will be in a position to clarify its stand after the consultative process is completed.

Hearing Mehta, Justice Shakdher at the outset orally remarked that there are only two ways of closing the issue: one, judicial decision and two, intervention of the legislature, thereby adding that the Bench wants to hear the stand of Central Government.

"We don't claim to be the repository of wisdom but it's our job as constitutional court to decide all lis which comes before us. We are still listening," Justice Shakdher said as he clarified that the bench was yet to do internal consultations for deciding the issue in hand.

Accordingly, the Court deferred the hearing till February 21.

"You (Central Government) come back and tell us. We are on 7th, we will resume on 21st," Justice Shakdher told Additional Solicitor General Chetan Sharma.

During the course of hearing today, Senior Advocate Colin Gonsalves appearing for one of the petitioners concluded his rebuttal submissions.

Rebutting the submissions made by the Centre in the affidavits, Gonsalves argued that the Union of India took six years and yet did not have a stand on the marital rape issue and in fact is saying that the same is not urgent.

He also referred to a judgment delivered by the Supreme Court of Nepal on the issue of marital rape wherein it was observed that "Hindu religion and its literature stress on purity, cleanliness and behavior of good faith in conjugal life, it cannot be said that Hindu religion and traditions exempts the heinous act of rape to wife."

Therefore, Gonsalves submitted thus: "The time has come now for such a huge crime, possibly the most significant crime against women, no qualifications, no caveat, this crime has to be redressed immediately."

About Centre's Affidavit

In an additional affidavit filed dated February 3, 2022, the Centre had submitted thus:

"In the most respectful submission of the Central Government, considering the social impact involved, the 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 of this large, populous and diverse country, taking a decision merely based upon the arguments of few lawyers may not serve the ends of justice."

"The Deponent, therefore, reiterates that the hearing be deferred providing for a stipulated time line within which the Central Government would conduct an effective consultative process after which it will be in a position to assist this Hon'ble Court."

The Centre had recently informed the Rajya Sabha that a process for comprehensive amendments to criminal laws in consultation with all stakeholders has been initiated by the government. 

Accordingly, in the affidavit, Centre stated that:

"It is respectfully reiterated that if the matter which is pending since 2015 awaits such fruitful exercise for some time, no prejudice would be caused and it will be possible for the Central Government to assist the Court meaningfully and would be possible for this Hon'ble Court to take holistic view rather than deciding such a sensitive issue as a mere legal question based upon the submission of few lawyers."

Centre said that while it is committed towards protection of liberty, dignity and rights of every woman who is the fundamental foundation and a pillar of a civilized society, however, it has been said that the question involved in the petitions "may not be treated merely as a question concerning constitutional validity of a statutory provision as the subject matter has and will have very far reaching socio-legal implications in the country."

Accordingly, Centre had said that matter needs a comprehensive approach rather than a strictly legal approach.

"As already pointed out on earlier occasions, the provisions of Section 375 and the socio-legal implications of grant of prayer made needs an exercise of a meaningful consultative process with various stake holders on several aspects. The State Governments are not before this Hon'ble Court. No other stake holders are before this Hon'ble Court other than few affected parties and the Central Government," the affidavit read.

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.

Case Title: RIT Foundation v. UOI and other connected matters