Cannot keep the matter hanging: Delhi HC to Centre on pleas against marital rape

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Hearing petitions seeking criminalisation of marital rape, the Delhi High Court on Monday told the Centre that the government may have its own approach but the court cannot keep the matter hanging beyond a particular period. The observation came after the central government reiterated its request seeking more time to file a fresh response to the petitions.

“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 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 bench.

“Your lordships are not just deciding the constitutional validity of statutory provision. It may not be looked at from that microscopic angle. Your lordships deciding the validity of an industrial dispute act or some finance provision is different. Here the dignity of a woman is at stake. There are family issues. There would be several considerations which would weigh with the government to take a position to assist your lordships,” added Mehta.

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 amicus curiae. Terming it an important matter, the court said it will not end here and may get carried to the next court.

“If it is in a litigative mode, it is going to end there. The government may have its own approach but for the court having started hearing to keep it hanging beyond a particular period loses meaning for the simple reason people come here for adjudication…,” added the court.

Mehta submitted that the government will have to consider the issue in “a little holistic” manner. “The fact that it may not end here, it involves dignity of women, it involves other social, family issues. the central government will have to be very very conscious … I feel I would be doing injustice to citizens of India if I put my case half-heartedly, more particularly when nothing imminent is going to happen,” he said.

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 exist in a very different space and to invoke the lesser offence and not the graver offence is neither permissible in the facts of the case nor it is something the statute allows.

“IPC 498A includes the element of cruelty. It is not anyone’s case that the rape is not a cruel act but the cruelty required for the fulfilment of [IPC] 498A … is quite different from the descriptive sexual acts without the woman’s consent given in Section 375. Each of these offences are standalone offences, different in their nuance, understanding and ingredients,” John argued.

“That is the structure of penal code where every offence is distinct and there are no overlapping offences, though some ingredients may be common, therefore to argue that wives have remedies under 498A, under [Prohibition of Women from] Domestic Women Act, Dowry Prohibition Act, and such like Acts is not, to my mind, a tenable argument,” she continued.

Concluding her arguments, John also told the court that she received a “lot of hate mail” in connection with the case and was even asked to recuse “from the matter because I have an opinion on the subject”.

“My answer is simple. Ultimately the challenge is only to be tested on the anvil of constitutionality. Nothing else. If it is constitutionally sound, the exception remains; if it is unsound, it goes. It does not matter what views we hold on the subject,” she said.

Justice Shankar said, “If having a view was a ground for recusal, we would have to recuse ourselves from every case.”

The court reiterated that it will not be accepting any more intervention applications in the case, while turning down a request made by advocate J Sai Deepak, who said he represents Madhu Kishwar, for intervention in the case.

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