Delhi HC refuses to grant more time to Centre to state stand on pleas to criminalise marital rape

The Centre submitted that it has sent communication to all states and Union territories asking their comments on the issue

The Delhi High Court Monday refused to grant more time to the Centre to place its stand on the issue of criminalisation of marital rape, saying that it was not possible to defer an ongoing matter endlessly and reserved its judgement on the petitions.

The Centre submitted that it has sent communication to all states and Union Territories seeking their comments on the issue and urged the court that the proceedings be adjourned till such time the inputs are received.

However, a bench of Justices Rajiv Shakdher and C Hari Shankar said it was not possible to adjourn an ongoing matter as there is no terminal date by when the Centre's consultations will be over on the issue and added that it was closing the arguments.

“We are closing it then,” the bench said, adding, “judgement reserved. List for directions on March 2. In the meantime, counsel for parties may file their written submissions and compliations.”

While, the Centre was supposed to begin its submissions on Monday by making its stand clear on the issue, Solicitor General Tushar Mehta said the position could only be taken by the central government after consultations with states and other stakeholders.

He said that as this case could have an impact on social and family life with far reaching consequences, the Centre can place its stand only after a consultative process.

The bench said: “Court can’t let the matter hang like this. You can have consultation going on. We will hear and reserve the judgement. But if you say the court should adjourn the matter endlessly, it will not happen.

“This is a matter which will be closed either through court’s channel or legislature’s channel. As long as there is a challenge before us, we will have to go on. It is now coming to a situation where we are coming to a log jam.”

When the court asked the law officer to tell whether it has ever happened that a matter of such nature is adjourned for long, Mehta said as per his experience, not yet and added that there are very few challenges which impact social and family ties.

“Generally a legislative enactment is challenged and we take a stand. But those are commercial or taxation laws. There are very few cases when such wide consequences are found. It is, therefore, our stand that we will be able to put our stand only for consultation,” he said.

The bench further said when Section 377 (unnatural sex) of IPC and adultery cases happened in the Supreme Court, the court continued the hearing.

“The more I think about it, the more I am convinced that you have to take a stand and close it. We are not the last repository of wisdom. Someone needs to take a call..,” Justice Shakdher said.

The court said a decisive executive has to say yes or no and no one can stop it from changing its stand.

To this, Mehta said, “We will say yes or no but after having consultations. My instructions are that we will make a stand after consultations. The counter affidavits filed earlier not be treated as final version of the Centre and the final version would be after consultation.”

When the Solicitor General said, “I would not be able to go beyond what is stated in this counter affidavit”, the bench replied, “then let's close it after which is being argued now.”

In its affidavit filed during the day, the Centre said it is a considered stand of the central government that the stand to be taken before this court by it can only be after consultation with all the state governments and other stakeholders.

“This is more so since the issues involved has a direct bearing on the society in general and is a part of Concurrent List of the Seventh Schedule to the Constitution,” said the affidavit, filed through central government standing counsel Monika Arora, said.

It said the central government has sent a communication on February 10 to the Chief Secretaries of all the State governments/ Union Territory Administrations as well as to the National Commission for Women.

The Centre is awaiting the response from all of them. It is only thereafter that the Centre will be in a position to take a stand before this court, it added.

“The Central government reiterates its commitment to protect the liberty, dignity and rights of every woman. It is, therefore, desirable that the final adjudication by this court in the present batch of petitions be deferred till the view of the stakeholders is received by the Central government,” the affidavit said.

The court was dealing with a batch of petitions seeking to strike down the exception granted to husbands under the Indian rape law.

On February 7, the high court had granted two weeks to the Centre to state its stand on the petitions seeking criminalisation of marital rape.

The court 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.

In its 2017 affidavit, the Centre had opposed the pleas submitting that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.

However, the Centre told the court in January that it was "re-looking" at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago.

The petitioners have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.

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