Criminalising marital rape: HC tells Centre to clarify stand in principle — 'must say yes or no'

New Delhi: The Delhi High Court on Monday asked the Centre to clarify its position in principle on the issue of criminalising marital rape, noting that the Union government must conclude in a yes or no as to the direction in which they are moving as in such cases, deliberations can go on forever.

Justice Rajiv Shakdher, who is heading the bench dealing with a batch of petitions challenging the legality of the marital rape exception in the Indian Penal Code (IPC), said, "In a matter like this, they (Centre) have to in principle say yes or no because if they don't, however much they may deliberate, it is not going to come to an end."

Solicitor General Tushar Mehta said that it will not be appropriate to place before the court a less-discussed and consulted stand and that time was needed to undertake the process of consultation.

"Yes and no is the end product of consultation," responded the solicitor general who also submitted that nothing imminent was going to happen within a couple of weeks.

The bench, which also comprised Justice C Hari Shankar, said that it would continue to hear other lawyers appearing in the case which would give time to the Centre to clarify its position in the matter.

Meanwhile, hearing arguments on Monday, Justice Shankar said that there should be a dispassionate attitude in the case and that the issue of criminalising marital rape should prima facie be viewed from the perspective of the act and not of a married or unmarried woman.

The judge reiterated that a married relationship entailed the expectation of intercourse, which was legally and socially recognised - underscoring that of course, consent and willingness of both parties are important.

However, Senior advocate Rajshekhar Rao, who is assisting the court as an amicus curiae, submitted that there was no reason to preserve the marital rape exception - simply noting that even when the act is considered, the chief reason for the criminalisation of rape is the violation of the woman.

Holding this line of argument, the amicus argued that a married woman cannot be denied the right to prosecute her husband if she believed that she was raped and in case of denial of a conjugal relationship, the remedy before the spouse is to file a plea for restitution and not force himself upon her.

He had earlier also said that the foundation of section 375 (rape) of the IPC was the lack of consent and there was no reason to give lessor protection against non-consensual intercourse to a married woman. He had thus argued that the marital rape exception in law was arbitrary and violated Article 14 and Article 21 of the Constitution.

The central government, in its earlier affidavit filed in the case, has said that marital rape cannot be made a criminal offence as it could destabilise the institution of marriage but it has also submitted that it is taking a considered view of the matter as it looks at a comprehensive overhaul of criminal law.

Significantly, the Delhi government has maintained before the court that while the act is heinous, it had already been covered as a crime of cruelty under the IPC.

However, the PILs being heard currently, filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and woman, deal with the specific exception granted to husbands under Section 375 of the Indian Penal Code — the country's rape law.