The Delhi High Court on Monday gave the Centre two weeks’ time to clarify its stance on the petitions seeking to criminalise marital rape, reported Live Law.
A bench of Justices Rajiv Shakdher and C Hari Shankar is hearing a batch of petitions to remove Exception 2 in the rape law under Section 375 of the Indian Penal Code. The exception states that forcible sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.
The directive came after the Centre sought to defer the hearings through an affidavit filed on February 3. The government had contended that the questions involved in the case have “far-reaching socio-legal implications” and sought to defer the matter by citing pending consultative process.
During Monday’s hearing, Solicitor General Tushar Mehta told the High Court that the Centre has sought time to provide a timeline within which it would be able to conduct the consultative process with the stakeholders.
Mehta pointed out that the stakeholders, including state governments, were not before the High Court, reported Bar and Bench.
“I am saying why shouldn’t we wait?” he asked the court. “No time has been given to the Centre to deliberate on the issue. Assistance of Centre can be meaningful only after participation of all stakeholders.”
Justice Shakdher said that the High Court had already pointed out to him that the matter can be dealt only in two ways – one is that the judiciary decides it and the other is through the legislature.
“As far as we are concerned, if the legislature intervenes, surely there will be fresh cause of action,” he said. “If the exception is deleted, it will be challenged. We are very clear we do not claim to be a repository of all wisdom but it is our job to decide the issue which comes before us.”
Shakdher said that the government has to take a call on the matter and decide whether it agreed with the petitioners or not. He clarified that the High Court was also yet to conduct internal consultations.
Mehta also said that he was not aware of any earlier affidavits or written submissions filed by any of the government’s counsel, besides the one submitted on February 3. He said that the only stand taken by the government is to defer the hearing.
“What Ms Monika Arora [Centre’s standing counsel] has or hasn’t filed I am not aware,” he said. “Whatever is filed by Ms Arora is not the stand of Centre. Centre’s stand is reflected in our affidavit of last week.”
The Centre had filed affidavits in 2017 and earlier this year.
In the 2017 affidavit, the government had opposed criminalisation of marital rape, saying that it would destabilise the institution of marriage.
In its affidavit filed on January 12, the government had said that criminalisation of marital rape “could open floodgates of false cases being made with ulterior motives”.
However, in the February 3 affidavit, the Centre said it needed time to consult with all the stakeholders to be able to help the court with the case.
On Monday, Senior Advocate Colin Gonsalves, representing one of the petitioners, argued that the Centre took six years and still does not have clear stance on it.
He cited the verdict of the Nepalese Supreme Court, which had struck down the marital rape exception in the country. Gonsalves argued that the almost all the grounds taken by the government in its 2017 affidavit have been dealt with in that verdict.
“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,” the lawyer submitted.
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