HC asks Centre to clarify if it wishes to withdraw stand opposing pleas to criminalise marital rape

| | New Delhi
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HC asks Centre to clarify if it wishes to withdraw stand opposing pleas to criminalise marital rape

Saturday, 29 January 2022 | PTI | New Delhi

The Delhi High Court on Friday asked the Centre to inform whether it wishes to withdraw its 2017 affidavit in which it had submitted that marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing husbands.

A bench of Justices Rajiv Shakdher and C Hari Shankar, which has been conducting marathon hearings on a batch of petitions seeking criminalisation of marital rape, asked Additional Solicitor General Chetan Sharma to take instructions on this aspect and listed the matter for January 31.

The court's direction came after advocate Karuna Nundy, representing petitioner NGOs RIT Foundation and All India Democratic Women's Association, sought a clarification as to whether she shall address on the written submissions and affidavits filed by the central government so far or they are withdrawing it.         To this, Justice Shakdher said, “Mr Sharma take instructions on that as well. What do you want? Monday.”

This assumes significance as the Centre, in its affidavit filed in August 2017, had said the Supreme Court and various High Courts have already observed the rising misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of Indian Penal Code (IPC).                It had further said that marital rape has not been defined in an statue or law and while the offence of rape is defined under section 375 IPC, defining marital rape would call for a broad based consensus of the society.

However, in January, Solicitor General Tushar Mehta told the high court that it was considering a “constructive approach” to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.       He had said criminalisation of marital rape involves “family issues” as well as the dignity of a woman and cannot be looked at from a “microscopic angle” and sought some time to respond with the government's stand.

The bench, on January 24, granted 10 days to the Centre to come back with its stand on the issue.           The court, which has been hearing the pleas on a daily basis since January 10, has concluded hearing the submissions of petitioners, Delhi government and some NGOs which have been opposing the pleas.        On Friday, Sharma submitted that the petitioners should advance their rejoinder arguments after the Centre places its arguments before the court.

However, the bench said that either the central government shall start its submissions from January 31 or it would hear the rejoinder arguments of petitioners.        “You are not starting so we will hear them. What to do now? If you do not start, we will hear them. Without you it is not going anywhere. At least we will hear Karuna Nundy and Colin Gonsalves (counsel for petitioners),” the bench said.

Sharma responded by saying there was “no unseemly hurry” in the matter and the court has already granted time to the Centre. To this, Justice Shakdher shot back, “Please don't say that. We have taken out our judicial time on this, so don't say this and don't enter on side issues. Let us have a dialogue on more substantial things, which is the law.”                “Take a week after they have finished but at least start. You can come back on that,” the bench said.    

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