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

The Central government has reiterated its request before the Delhi High Court to defer hearing in a bunch of pleas challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape provided the wife is above 15 years of age.

Time is 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.

In an additional affidavit filed dated February 3, 2022, the Centre has 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 development came after the Centre informed the Rajya Sabha yesterday that a process for comprehensive amendments to criminal laws in consultation with all stakeholders has been initiated by the government. 

Marital Rape| 'Process For Comprehensive Amendments To Criminal Laws In Consultation With Stakeholders Initiated': Centre Tells Parliament

Accordingly, in the affidavit, Centre has 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 has 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 has 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 reads.

While the matter was slated to be heard today, the bench could not assemble due to non-availability of Justice Hari C Shankar who is part of the bench headed by Justice Rajiv Shakdher. The matter will now be heard tomorrow.

Last month, changing the stance taken in the initial affidavit, the Central Government had informed the Court that it was undertaking a consultative process on the issue.

It submitted that it has called for suggestions from various stakeholders, including Chief Ministers of all States and Chief Justice of India and High Court Chief Justices, regarding the amendment to the criminal laws.

Earlier, in its written submissions filed in the year 2017, the Centre had opposed criminalizing marital rape, stating that the same will have the effect of destabilizing the institution of marriage.

It was further apprehended that the provision will become an easy tool for harassing the husbands.

Yesterday, concluding her rebuttal arguments, Advocate Karuna Nundy, who was making rebuttal arguments for two petitioners, addressed the submissions made by the Central Government on the marital rape issue. 

She specifically addressed the argument wherein the Centre has said that social conditions prevalent in India are also required to be taken into account and that merely because western countries have criminalized rape doesn't necessarily mean India will do it too blindly.

"I wonder whether it was a stray comment but I wonder it's not because same assertion has been made in other pleadings. Basically saying that if you're a poor or illiterate women then marital rape shouldn't be criminalized. This is the Union of India, this is the Govt and this is why we are before the Court," Nundy had argued.

Marital Rape Exception Restricts Women's Freedom Of Sexual Expression, Violates Art. 19(1)(a) Of Constitution: Adv Karuna Nundy To Delhi High Court

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