Centre asks Delhi HC to defer hearings on marital rape


The Centre on Friday asked the Delhi high court to defer hearings on a batch of petitions seeking to criminalise marital rape, saying that it needs time to conduct an effective consultative process before reaching any conclusion, and that the absence of such a process by the executive and legislature “may result in some injustice to one section or other”. “Both the executive and the legislature are equally concerned and committed to the protection of fundamental rights of its citizens. However, it is the considered opinion of the central government that this Hon’ble court can be assisted only after a consultative process is undertaken by the central government with all stakeholders including all the state governments,” the ministry of home affairs (MHA) said in an additional affidavit filed before a bench of justices Rajiv Shakdher and C Hari Shankar,

The Centre said that “considering the social impact involved, the intimate family relations being the subject matter and this 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 home ministry promised to give a time-bound schedule within which the government will carry out such consultative process.

The high court is hearing a bunch of PILs filed in 2015 by NGO RIT Foundation, All India Democratic Women’s Association and two individuals who 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.

Exception 2 of Section 375 of the IPC decriminalizes 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.

At previous hearings, the Centre has opposed the plea to criminalise marital rape.

In its August 2017 affidavit, the Centre said India cannot blindly follow the western countries and criminalise marital rape as several factors have to be taken into account and pointed to misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of Indian Penal Code (IPC). The government insisted that marital rape has not been defined in 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.

The home ministry affidavit on Friday said that it can give meaningful and effective assistance to the court only after a consultative process with the participation of all stakeholders.

“...the petition is filed in the year 2015. The provisions whose validity is challenged is in existence since inception. It was only because of one of the petitioners suddenly mentioning the matter for final hearing during the present pandemic that the hearing has commenced leaving no time for the central government to deliberate upon the issues and implications involved with all stakeholders as such an exercise, by its very nature, takes a reasonable time, “ the home ministry said. “The Government of India is committed to fully and meaningfully protect the liberty, dignity and rights of every woman who is the fundamental foundation and a pillar of a civilized society”. But it stressed that the “absence of any such consultative process by the executive and legislature may result in some injustice to one section or other,” it added.

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