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The Delhi high court Friday asked the Centre to inform whether it wishes to withdraw its 2017 affidavit in which it had submitted that marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing husbands.
A bench of Justices Rajiv Shakdher and C Hari Shankar, which has been conducting marathon hearings on a batch of petitions seeking criminalisation of marital rape, asked Additional Solicitor General Chetan Sharma to take instructions on this aspect and listed the matter for January 31.
The court's direction came after advocate Karuna Nundy, representing petitioner NGOs RIT Foundation and All India Democratic Women's Association, sought a clarification as to whether she shall address on the written submissions and affidavits filed by the central government so far or they are withdrawing it.
To this, Justice Shakdher said, “Mr Sharma take instructions on that as well. What do you want? Monday.”
This assumes significance as the Centre, in its affidavit filed in August 2017, had said the Supreme Court and various High Courts have already observed the rising misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of Indian Penal Code.
It had further said that marital rape has not been defined in an statue or law and while the offence of rape is defined under section 375 IPC, defining marital rape would call for a broad based consensus of the society.
However, in January, solicitor general Tushar Mehta told the high court that it was considering a 'constructive approach' to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.
He had said criminalisation of marital rape involves 'family issues' as well as the dignity of a woman and cannot be looked at from a 'microscopic angle' and sought some time to respond with the government's stand.
The bench, on January 24, granted 10 days to the Centre to come back with its stand on the issue.
The court, which has been hearing the pleas on a daily basis since January 10, has concluded hearing the submissions of petitioners, Delhi government and some NGOs which have been opposing the pleas.
On Friday, Sharma submitted that the petitioners should advance their rejoinder arguments after the Centre places its arguments before the court.
However, the bench said that either the central government shall start its submissions from January 31 or it would hear the rejoinder arguments of petitioners.
“You are not starting so we will hear them. What to do now? If you do not start, we will hear them. Without you it is not going anywhere. At least we will hear Karuna Nundy and Colin Gonsalves (counsel for petitioners),” the bench said.
Sharma responded by saying there was 'no unseemly hurry' in the matter and the court has already granted time to the Centre.
To this, Justice Shakdher shot back, “Please don't say that. We have taken out our judicial time on this, so don't say this and don't enter on side issues. Let us have a dialogue on more substantial things, which is the law.”
“Take a week after they have finished but at least start. You can come back on that,” the bench said.
During the hearing, NGO, Men Welfare Trust, which is opposing the batch of petitions seeking criminalisation of marital rape, submitted that the Domestic Violence Act was specifically promulgated for recognising spouse sexual violence.
Advocate Sai Deepak J, representing the NGO, submitted that the immunity provided is to protect the civil liberties of the husband, thanks to the nature of the relationship.
He also clarified that the entity which he represents is not against recognition of spousal sexual violence and claimed that some of the news reports have slightly misconstrued his submissions.
On this, the bench said, “By the time we finish, we will also face flak.”
Nundy also submitted that she has received rape threats but she has not talked about it.
MWT's counsel had earlier argued that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.
The bench was hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
The petitioners had said that marital rape was the biggest form of sexual violence against women and the Delhi government had said that this act was already covered as a 'crime of cruelty' under IPC.
The petitioner NGO has challenged the Constitutionality of section 375 IPC on the ground that it discriminated against married women being sexually assaulted by their husbands.