The Indian Express :
Deferring the hearing of a case seeking criminalisation of marital rape to February 21, the Delhi High Court on Monday granted the Centre two weeks to place its final stand on the issue before it and told the government that it does not gel with it as a court to keep the matter pending. The legal question has remained undecided before the court since 2015.
The government last week had urged the court to defer the proceedings in the matter to await the outcome of a consultative process with various stakeholders. Solicitor General Tushar Mehta reiterated the government request on Monday and said the legal question should not be treated merely a question of constitutional validity.
“It affects human lives. We are entering a bedroom,” submitted Mehta. “We worship women. This is possibly the only country where we worship women but while dealing with a sensitive socio-legal statutory provision, a little more holistic view is called for.” On 22 dates between January 7 and February 7, the division bench of Justices Rajiv Shakdher and C Hari Shankar heard the petitions challenging Exception 2 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under Section 376 IPC.
“On an issue like this, we don’t claim to be the repository of all wisdom but this is our job as a constitutional court to decide the lis which comes before us. You argue whatever… and this is a matter where we want to hear you. You come and state your position. We have to take a call. We will give you two weeks,” said the court following Mehta’s request.
Also read |A history of the movement to criminalise marital rape across the world
The court also said that it had no hand in getting the matter listed before it and the case was placed before it by the master of roster, the Chief Justice. It also said that a matter gets decided either in court or when the legislature intervenes. “We think this will also be an input,” said the bench.
Undertaking to provide a time-bound schedule within which it will carry out the consultative process on the issue, the Centre last week said the matter has been pending since 2015 and if it waits for such “fruitful exercise” for some time, no prejudice would be caused and that it will be possible for the government to assist the court meaningfully.
“In the most respectful submission of the central government, considering the social impact involved, the intimate family relations being the subject matter and this Hon’ble 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 Ministry of Home Affairs said in an affidavit before the court.
While the matter has remained pending since 2015 and the government submitted its stand in 2017, the Centre had last month told the court that it wants to hold a consultative process with the stakeholders and place a fresh and comprehensive stand before the court. The other parties in the case have already been heard.
Stating that what “may appear to be marital rape” to a wife “may not appear so to others”, the central government in 2017 had submitted that striking down the exception “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. It had also cited the “rising misuse of Section 498A of IPC” – cruelty by husband or husband’s relative against a woman – to show how laws dealing with violence against women can be misused “for harassing the husbands”.
