Delhi HC reserves verdict on plea to criminalise marital rape

THE Delhi High Court, on Monday, reserved its judgment on a batch of petitions seeking to strike down Exception 2 to Section 375 (rape) of the Indian Penal Code [IPC], thereby criminalizing marital rape, even as the Union Government expressed its inability to disclose its stand on the petitions despite the Court’s granting ample opportunity to it.

A bench of Justices Rajiv Shakdher and C. Hari Kumar assembled on Monday after a hiatus of two weeks to enable the union government to come up with its stand on the validity of Exception 2 to section 375.

Exception 2 to the section 375 (rape) of the IPC states that sexual intercourse or sexual acts by a man with his wife, if she is not under 15 years of age, is not rape. However, the Supreme Court, in Independent Thought vs. Union of India, on October 12, 2017, read down Exception 2 to Section 375 IPC and raised the age of consent to 18 years for the purpose of the Exception. It also called for legal reforms to prevent and address violations of girls’ rights due to child marriage.

Solicitor General Tushar Mehta, appearing for the union government, reiterated the submissions that it would not be possible for the government to take a stand till the views from all stakeholders including the states and Union Territories are received. Mehta informed the court that the Centre recently wrote to the states seeking their views on marital rape, but none of the states have yet furnished their views. He thus sought deferment of the hearing till such time the views from stakeholders are received.

The submissions did not find favour with the bench which asked Mehta whether it has ever happened in the history that the court allowed the matter involving a challenge to a statute to linger on, for want of consultative process by the Executive.

Justice Shakdher told Mehta that the Centre has to bite the bullet. It has to take a stand one way or the other. You cannot be like Trishanku, neither here nor there”, Justice Shakhder told Mehta.

Mehta, in response, submitted that there are several constitutional challenges but there are very few that impact social life and family life.

“Generally, when a statute is under challenge, we take one position or other depending on statements of object and reasons or law. There are very few cases where such wide implication is found. Therefore it’s our stand, it’s for your lordships to consider, that we will be disclosing only after consultation. We find it to be not prudent to do so without consulting stakeholders”, said Mehta.

Unimpressed, Justice Shakdher told Mehta that there are only two ways to close this matter. Either the court decides it, or the legislature intervenes.

The High Court had begun hearing on a batch of petitions in the second week of January. Advocates Karuna Nundy and Colin Gonsalves, appearing from the different petitioners’ sides, argued against Exception 2. They argued that the Exception violates the bodily autonomy of the married women and is manifestly arbitrary.

Senior Advocates Rajshekhar Rao and Rebecca John, who were appointed as amici curiae, also argued against retaining the Exception while organisations namely ‘Hridya’ and ‘Men Welfare Trust’, led by advocates R.K. Kapoor and J. Sai Deepak, respectively, opposed the petitions and argued that it was not for the Court to create a new offence by striking down the Exception.

Click here to read Central Government’s affidavit. 

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