The Delhi High Court is hearing the petitions, in which they have requested to make marital rape a crime. Justice Rajiv Shakdher, leading the bench in Monday’s hearing, said the Center will have to answer ‘yes or no’ as the deliberations in such matters never end.
New Delhi: The Delhi High Court on Monday asked the Center to explain its position in principle on the issue of criminalizing marital rape, after the government sought time to formulate and present its “considered stand”.
Justice Rajiv Shakdher, who was heading the division bench hearing petitions challenging the validity of the ‘marital rape exception’ under the Indian Penal Code (IPC), said the Center will have to answer ‘yes or no’ as such cases The discussions never end. The bench also included Justice C. Hari Shankar.
“In a case like this, they (Centre) will have to say yes or no in principle, because if they don’t do that, no matter how much deliberations they have, it is not going to end,” the judge said.
Solicitor General Tushar Mehta said it would not be appropriate to take a ‘less discussion and consultation’ stand before the court and time is needed to initiate the process of consultation.
Justice Shakdher said, “I don’t mind it (consultation) but they have to decide which way they are going… for some reason I think there are some cases in which the court has to take a final decision.” And then it is solved. You take your time.’
The Solicitor General said, ‘We will have to prepare our stand and place a well-considered stand before you. This may require some counseling etc.’
The bench said that it will continue to hear other lawyers appearing in the case, which will give time to the Centre. The bench told the Solicitor General, ‘You come back. We will decide how much time you have to give.
According to the Indian Express, the court last week said it would not wait for the results of the government’s “extensive exercise to amend criminal laws” as that consultation process would take years.
Earlier in 2017, the central government had said in its affidavit that “marital rape which is felt by one wife will not be felt by the other” said that marital rape cannot be classified as a crime, as it would lead to such a situation. which can destabilize the institution of marriage and become an easy means to harass husbands.
The central government had told the court on January 13 that it was considering a constructive approach on the issue of criminalization of marital rape and sought suggestions from several stakeholders and officials on comprehensive amendments to the criminal law.
Central government counsel Monica Arora told the bench that it is doing extensive work on amendments to the criminal law, which includes Section 375 (rape) of the IPC.
In its additional affidavit filed by the Under Secretary in the Ministry of Home Affairs, the Center had said that the matter is already being looked into and the marital rape exception cannot be struck down at the instance of the petitioners only because of the principles of natural justice. For ‘all stakeholders need to be heard.’
The bench is hearing PILs filed by NGO RIT Foundation, All India Democratic Women’s Association, a man and a woman, seeking to do away with the exception of marital rape under Indian law.
It is noteworthy that the provision under Section 375 (rape) of the Indian Penal Code exempts a person from the offense of rape having physical relations with his wife, provided the wife is more than 15 years of age.
The Delhi government has told the court that marital rape has already been included as an “offence of cruelty” under the Indian Penal Code (IPC).
On Monday, Justice Harishankar reiterated that a married relationship requires intercourse, which is legally and socially recognized.
Senior advocate Rajashekhar Rao, assisting the court as an amicus curiae, submitted that there is no reason to maintain the marital rape exception.
Earlier, Nyayamitra Rao had put the question before the court on Friday whether it was appropriate that in today’s age a wife should be deprived of the right to call rape as rape and she should be subject to the provision of cruelty against her husband for the act. Ask for help?
Senior advocate Rao said that one does not say that the husband has no right, but the question is whether he has the right to escape from the rigors of law under the said provision or whether he believes that the law gives him exemption or He has a birthright in the matter.
He had argued, “If the provision conveys the same message, is it not a fundamental attack on the existence of a wife or a woman?” Can anyone argue that it is reasonable, just and fair that a wife should be deprived of the right to call rape as rape in today’s time, but instead seek relief under section 498A (cruelty to a married woman) of IPC? needed.’
In that hearing, Justice Harishankar had said that prima facie he is of the opinion that consent is not an issue in this matter.
Earlier, while hearing the same case, the court had said that every woman, whether married or not, has the right to say no to sexual relations made in disagreement.
The court had said that there cannot be a distinction between the respect of married and unmarried women and a woman, whether married or not, has the right to say ‘no’ to a sexual relationship which is consensual.
The court also observed that the important point is that a woman is a woman and cannot be weighed differently in any relation, saying that, if a woman is subjected to forcible sexual intercourse by her husband, That woman cannot take recourse to section 375 (rape) of the Indian Penal Code and she will have to resort to other criminal or civil law, is not right.
(with input from news agency language)
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