Centre taking a 'constructive approach'; why should husband's right trump wife's?: Amicus

New Delhi: Even as the Centre on Thursday told the Delhi High Court that it was considering a "constructive" approach to criminalising marital rape as it goes about its comprehensive amendments to criminal law here, the court noted that this would take a lot of time and sought to know if the Union government was working specifically on the aspect of marital rape.

Justice Rajiv Shakdher, who is heading the bench dealing with a batch of petitions seeking criminalisation of marital rape, informed during the hearing that Solicitor General Tushar Mehta mentioned the matter before him when certain other parties and Justice C Hari Shankar, who forms part of the bench, were not present.

Central government lawyer Monika Arora told the bench that the Centre was undertaking a comprehensive task of amending the criminal law which includes section 375 (rape) of the IPC.

"We have invited suggestions from all chief ministers of all state governments...the chief justice of India, Chief Justice of all high courts...judicial academies, national law universities, the Bar Council of India, Bar council of all courts and members of both houses of Parliament regarding comprehensively amending the criminal laws," she said.

But the court said, "If vis-a-vis (section) 375 you people (Centre) have some suggestions then we will consider that. Generally, this exercise will take a lot of time."

Significantly, Justice Shakdher, during the course of the submissions, orally observed that the exclusion of certain circumstances from the ambit of rape because of inter-party relationship is problematic and that the marital rape exception could be examined in the light of protection granted to sex workers in rape law.

The judge remarked that when the rape law grants no exemption in case of forced intercourse with a sex worker who chooses to withdraw consent at a belated stage, why should a wife be less empowered.

However, Justice Shankar opined that the expectation of sex in the case of a marital relationship was not the same as in the instance of a sex worker.

Meanwhile, Senior advocate Raj Shekhar Rao, who is appointed as an amicus curiae to assist the court, argued that husband and wife are two equals before law and there is no reason why husband's desire to have sex trump the wife's desire not to.

The amicus said that the foundation of section 375 was the lack of consent and there was no reason to give lessor protection against non-consensual intercourse to a married woman. He thus argued that the marital rape exception in law was arbitrary and violated article 14 and article 21 of the Constitution of India.

The amicus also said that striking down the exception would not result in the creation of a new offence and the concerns of interference in private marital space were unfounded.

The bench was hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law. Pleas have also been filed by some men's right organisations which are opposing the petitions seeking to quash the exception, saying there was no question of discrimination and the Parliament has retained the provision considering the overall view of Indian society.

The matter will be taken up again today.