Criminalisation of marital rape: Delhi High Court rebukes Centre, grants 10 more days to file response

Coming down heavily on the Central government for seeking more time to submit its response on criminalisation of marital rape, the Delhi High Court told the former that the government may have its own approach, but the Court cannot keep the matter hanging beyond a particular period. 

A Division Bench comprising Justice Rajiv Shakdher and Justice C Hari Shankar made the observation on Monday, while granting 10 days time to the government to present a fresh response to the case,  which has been pending since 2015.

“For some people, every day matters for a simple reason that some say this abuse is happening. Maybe not reported or reported but this is happening. So it cannot be our answer to them ‘listen, this has been there for hundred years, now what is the urgency’. Now that we have started, we would like to conclude,” said the division bench of Justice Rajiv

Shakdher and Justice C Hari Shankar, while granting 10 days time to the government to present a fresh response to the case pending since 2015.

Solicitor General of India Tushar Mehta had earlier submitted that the government was in the middle of a consultation process on the subject and would need “reasonable time” to place its stand before the court. 

Mehta said the government had come to know only a month ago that the matter was being taken up for hearing by the High Court. 

The Centre said the Court was not just deciding the constitutional validity of a statutory provision, but the dignity of a woman was at stake here, which may “not be looked at from that microscopic angle”.

The SG further said that there would be several considerations, which would weigh with the government to take a position. There are social and 

family issues involved, the Central government will have to be very very conscious, it added.

Mehta said it would be doing injustice to citizens of India, if the Centre puts its case half-heartedly, more particularly when nothing imminent is going to happen.

However, the court said the request was made 10 days ago as well and the government had been told to remain ready for submissions on completion of the arguments by the Amicus Curiae. Terming it as an important matter, the court said it will not end here and may get carried to the next court.

However, the court said it will be able to grant only seven to 10 days, and resumed hearing the petitions challenging the Exception 2 in IPC Section 375 that

protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under Section 376 IPC.

Senior Advocate Rebecca John, an Amicus Curiae in the case, on the argument that women have other remedies available in law to take action, said those remedies existed in a very different space and to invoke the lesser offence and not the graver offence was neither permissible in the facts of the case, nor was it something the statute allowed.

John said IPC 498A included the element of cruelty. It was not anyone’s case that rape was not a cruel act, but the cruelty required for the fulfilment of [IPC] 498A was quite different from the descriptive sexual acts without the woman’s consent given in Section 375. Each of these offences were standalone 

offences, different in their nuance, understanding and ingredients,” she added.

The Amicus Curiae said it was not a tenable argument to say  that wives have remedies under 498A, Prohibition of Women from Domestic Women Act, Dowry Prohibition Act, and other such Acts.

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