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Criminalization of marital rape: Delhi High Court reserves verdict on batch of pleas

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The Delhi High Court has reserved its judgment in a batch of pleas seeking the criminalization of marital rape, and listed the matter for March 2 for passing directions.

The development came after the Division Bench comprising Justices Rajiv Shakdher and C. Hari Shankar was informed by the Centre that the consultation process on the issue is in progress and a response on the issue from all State Governments and other stakeholders is awaited.

During the course of the hearing, Solicitor General Tushar Mehta, representing the Centre, reiterated that a considered stand by the Centre on the issue could be taken only after consultation with the State Government and other stakeholders; and in lieu thereof, a communication has already been made to all concerned, in respect of which their comments on the issue is awaited.

“The Central Government is awaiting a response from all of them. It is only thereafter that the Central Government will be in a position to take a stand,” he stated while referring to the latest affidavit filed by the Centre.

“This is more so since the issue involved has a direct bearing on the society in general and is a part of Concurrent List of the Seventh Schedule,” the affidavit added.

Considering the far reaching consequences, it is desirable that the stand of Central Government be decided after consultation with the stakeholders, he argued while urging the Bench for deferring hearing in the instant batch of petitions.

At this juncture, the Bench pointed out that deferring hearing on the matter “endlessly” is not possible. “This is a matter which will get closed either through a court route or a legislature route. If the legislature wants to intervene and there is a change, we have to look at that change and not what is before us. But till this is there and there is a challenge, we’ll have to go on,” the Bench orally remarked.

Mehta, then, submitted thus: “There are several constitutional challenges to several pieces of legislation. But there are very few challenges which impacts social life, family life, human relationships etc… There are very few cases where such a wide implication is found by the Central Government, taking a view either way may have some consequences. Therefore, it is our stand that we find it to be not prudent to take a view without consulting the stakeholders.”

The Bench while refusing to defer hearing on the matter any further and reserving judgment in the issue, noted thus:
“In sum, Mr. Mehta had submitted that the Central Government had written to all the State Governments seeking their comments with regard to the issue at hand. It was Mr. Mehta’s submission that hearing in the matter should be deferred till such time inputs are received from the State Governments. During the course of the hearing, it was indicated to Mr. Mehta that in an ongoing matter that will not be possible as there is no terminal date as to when the consultation process would get over.”

The Bench has directed the counsels to file their written submissions in the matter along with convenience compilations and placed the matter for directions on March 2, 2022.

At the outset, a bunch of petitions were filed before the Delhi High Court challenging Exception 2 to Section 375 of the Indian Penal Code which exempts sexual intercourse by a man with his own wife, the wife being above 15 years of age, from falling within the ambit of the offence of rape.

NGOs RIT Foundation and All India Domestic Women Association (AIDWA), the petitioners in the instant matters, have pleaded that the exception for marital rape under Section 375 of the Indian Penal Code violates the Constitution-given rights of dignity, personal and sexual autonomy and self-expression to women.

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