The Centre on Thursday urged the Delhi High Court to defer the hearing on the petitions seeking to criminalise marital rape, saying that the questions involved in the case have “far-reaching socio-legal implications”, reported Live Law.
The High Court is hearing a batch of petitions to remove Exception 2 in the rape law under Section 375 of the Indian Penal Code. The exception states that forcible sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.
While the Union government has several times asked for a deferment, this is the first time it has placed the request on record through an affidavit.
In its affidavit on Thursday, the Ministry of Home Affairs also said that the matter needed a comprehensive approach rather than just a strictly legal view. It said that no prejudice would be caused to the case if the deferment was given, noting that the matter has been pending since 2015.
“The state governments are not before this Hon’ble Court,” the affidavit pointed out. “No other stake holders are before this Hon’ble Court other than few affected parties and the central government.”
The affidavit said that the government was concerned and committed to protecting the fundamental rights of its citizens, reported Bar and Bench.
“However, it is the considered opinion of the central government that this Honourable Court can be assisted only after a consultative process is undertaken by the central government with all stakeholder including all the state governments,” the affidavit said.
The ministry said that it will conduct the consultative process with the stakeholders in a time-bound manner, allowing it to assist the court meaningfully.
The matter was scheduled to be heard on Thursday but the bench could not assemble as Justice Hari C Shankar was not available. The case will now be heard on Friday.
During the course of the hearing, the Centre had changed its stance from its initial affidavits and told the High Court that it was undertaking a consultative process on the matter. The government had submitted that it has called for suggestions from various stakeholders, including chief ministers and the chief justice of India and chief justices of High Courts.
Earlier in an affidavit filed in 2017, the government had opposed criminalising marital rape, saying that it would destabilise the institution of marriage. It had also said that the criminalisation would become an easy tool for harassing husbands.
In its affidavit filed on January 12, the government had said that criminalisation of marital rape “could open floodgates of false cases being made with ulterior motives”.
The government had also told the Delhi High Court in the affidavit that various other countries, mostly Western ones, have criminalised marital rape but it does not mean India should also “follow them blindly”.
“This country has its own unique problems due to factors like illiteracy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty etc, and these should be considered carefully before criminalising marital rape,” it had added.
Reacting the Centre’s affidavits, advocate Karuna Nundy, who is representing two petitioners in the case, had said that the exception pertaining to marital rape is unconstitutional as it gives primacy to the institution of marriage over the individuals in the marriage.
On Centre’s contention about considering the social problems prevalent in the Indian society, she had said: “Basically [the Centre is] saying that if you’re a poor or illiterate women then marital rape shouldn’t be criminalised. This is the Union of India, this is the government and this is why we are before the court.”