"Bite The Bullet": Delhi High Court Chides Centre For Indecision On Marital Rape

The Delhi High Court on Monday chided the Centre for dilly-dallying on the criminalisation of marital rape. You have to "bite the bullet", the court said after the Centre submitted that it will only take a stand after consultation with all states, union territories and other stakeholders. 

"You have to bite the bullet. If you say the court should adjourn the matter endlessly, it won't happen," the High Court told the Centre and added that a decisive executive has to say "yes or no". 

Rejecting the central government's request to defer the matter till comments from all stakeholders are received and ordered, the court reserved its judgement. The matter has now been listed on March 2, and the lawyers for all the parties have been directed to file their written submissions in the meantime. 

Solicitor General Tushar Mehta appeared for the government. Arguing that the issue had "far-reaching socio-legal implications" in the country, he said that a meaningful consultative process with various stakeholders including the state government was needed. 

On February 7, the High Court had granted two weeks' time to the Centre to state its position on the batch of petitions seeking criminalisation of marital rape. 

"You have to take a stand this way or that way," the Court said after Mr Mehta submitted that the Centre was waiting for responses from all states. 

The matter was before a bench of Justice Rajiv Shakdher and Justice C Hari Shankar. 

The court is hearing petitions filed by two NGOs, RIT Foundation and All India Democratic Women's Association, and two individuals, challenging the constitutional validity of the second exception to Section 375 of the IPC. It exempts sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age.

The petitioners were represented by lawyer Karuna Nundy. Lawyer Rebecca John is the Amicus Curiae (friend of the court) in the case. 

The current law favours the conjugal rights of the husband, the petitioners have argued, and said that it's based on a doctrine that believes a woman on marriage "grants an irrevocable sexual consent to her husband". 

"We should not allow an absurdity to prevail. Consent of the woman is important and essential," the petitioners and the Amicus Curiae have argued.

Responding to the Centre's arguments in court, Mariam Dhawale, General Secretary of petitioner NGO- AIDWA (All India Democratic Women's Association) told NDTV, "It is unfortunate that Central government is stalling the proceedings. We have been fighting for many years for the criminalisation of marital rape. So many women have been inflicted with tremendous violence by their husbands. Husbands think it is their right and wives cannot refuse. In this patriarchal society, the norm is that women cannot say no, but women are entitled to refuse sexual consent. We hope that the Centre will file a response soon. We hope that Delhi High Court will deal with the matter sympathetically and will give a positive order."

The Centre has said that as the subject matter is intimate family relations, it needs to consider the social impact before filing a response. "Taking a decision based on arguments of a few lawyers may not serve the ends of justice," Mr Mehta said.

The Centre further added that it needs to be "fully familiarised" with "prevailing ground realities" in different parts of society.