The Delhi High Court on Monday told the Centre that the government may have its own approach but the court cannot keep the matter of Criminalisation of Marital Rape hanging beyond a particular period. The observation came after the central government reiterated its request seeking more time to file a fresh response to the petitions.
The division bench of Justice Rajiv Shakdher and Justice C Hari Shankar, while granting 10-days time to the government to present a fresh response to the case pending since 2015 said,
For some people, every day matters for a simple reason that some say this abuse is happening. Maybe not reported or reported but this is happening. So it cannot be our answer to them ‘listen, this has been there for hundred years, now what is the urgency’. Now that we have started, we would like to conclude.
Solicitor General of India Tushar Mehta earlier submitted that the government was in the middle of a consultation process on the subject and would need “reasonable time” to place its stand before the court. Mehta said the government had come to know only a month ago that the matter was being taken up for hearing by the bench. Mehta added,
Your lordships are not just deciding the constitutional validity of statutory provision. It may not be looked at from that microscopic angle. Your lordships deciding the validity of an industrial dispute act or some finance provision is different.
Here the dignity of a woman is at stake. There are family issues. There would be several considerations which would weigh with the government to take a position to assist your lordships.
Govt Told To Remain Ready: Delhi HC
The Delhi high court said the request was made 10 days ago as well and the government had been told to remain ready for submissions on completion of the arguments by amicus curiae. Terming it an important matter, the court said it will not end here and may get carried to the next court. The high court added,
If it is in a litigative mode, it is going to end there. The government may have its own approach but for the court having started hearing to keep it hanging beyond a particular period loses meaning for the simple reason people come here for adjudication.
Mehta submitted that the government will have to consider the issue in “a little holistic” manner. He said,
The fact that it may not end here, it involves dignity of women, it involves other social, family issues. The central government will have to be very very conscious.
I feel I would be doing injustice to citizens of India if I put my case half-heartedly, more particularly when nothing imminent is going to happen.
Max 7-10 Days More: Delhi HC
The Delhi high court said it will be able to grant only seven to ten days, and resumed hearing the petitions challenging the Exception 2 in IPC Section 375 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under Section 376 IPC.
Amicus Curiae Rebecca John: Section 498A & DV Act Not Tenable
Senior Advocate Rebecca John, an amicus curiae who was added almost at the end of most arguments in the case, gave her response on the argument that women have other remedies available in law to take action. She said those remedies exist in a very different space and to invoke the lesser offence and not the graver offence is neither permissible in the facts of the case nor it is something the statute allows. John argued,
IPC 498A includes the element of cruelty. It is not anyone’s case that the rape is not a cruel act but the cruelty required for the fulfilment of [IPC] 498A is quite different from the descriptive sexual acts without the woman’s consent given in Section 375.
Each of these offences are standalone offences, different in their nuance, understanding and ingredients.
Continuing further, Rebecca said,
That is the structure of penal code where every offence is distinct and there are no overlapping offences, though some ingredients may be common, therefore to argue that wives have remedies under 498A, under [Prohibition of Women from] Domestic Women Act, Dowry Prohibition Act, and such like Acts is not, to my mind, a tenable argument.
Concluding her arguments, John also told the court that she received a “lot of hate mail” in connection with the case and was even asked to recuse because she had openly supported criminalisation of marital rape. She said,
My answer is simple. Ultimately the challenge is only to be tested on the anvil of constitutionality. Nothing else. If it is constitutionally sound, the exception remains; if it is unsound, it goes. It does not matter what views we hold on the subject.
Delhi HC Rejected Further Interventions
The court reiterated that it will not be accepting any more intervention applications in the case, while turning down a request made by Advocate J Sai Deepak, who said he represents Madhu Kishwar, for intervention in the case.
Deepak argued that there are subject matter experts who are merely asking for 10 minute window. To this Justice Shakdher said,
You are not running the Court. This matter has been going on for quite some time. I am not sure why you didn’t intervene then.
Delhi HC Rejected Submissions From Men Welfare Trust Representatives
Ritwik Bisaria for Men Welfare Trust wanted to make few submissions as well. However, Delhi HC said that Advocate Raj Kapoor was dealing with the same aspect and remarked,
This is more of legal conundrum so we want people trained on the aspect to make submissions.
Justice Shakdher added,
Please give your suggestions to Mr Kapoor. This is not the last forum.
Justice C Hari Shankar: Can Have Reasonable Expectations With Partner
At the very start of Friday’s hearing, Justice C Hari Shankar pointed out that one can’t “close ones eyes” to the fact that there is a difference that can be understood between a marital and non-marital relationship. He said,
There is one case where a man has no right to ask at all for sex since they are not in a marriage, but another case where he has a right sanctified with marital bond between them, he can expect reasonable sexual relations with partner.
The Delhi high court on Friday said,
There is a “qualitative difference” in sexual equation between people who are married to each other and between those who are not. One can’t “equate chalk and cheese”.
Justice C Hari Shankar, who is part of a bench headed by Justice Rajiv Shakdher, reminded Rebecca John, to assist the court on the petitions seeking to criminalise marital rape, that while “there is a right to expect sexual relations from both sides in a marriage, there is no such right when the parties are not married”.
Too Much Emphasis On Wife’s “Consent”
Explaining why he remains sceptical of “too much emphasis” on wife’s consent made by the amicus, Shankar said Parliament did provide “some kind of rational basis” to justify the exception in IPC 375 to protect husbands. Justice Shankar added,
We are obfuscating this entire argument, this entire rationale (provided by legislature) by concentrating on consent, consent, consent. We can’t deny that there is a presumption of constitutionality in the law made by Parliament. Specially in a criminal case we don’t lightly quash a provision that is not deemed an offence.
He also remarked if the court can “substitute our sensitivities or sensibilities” and “step into the legislature’s shoes” to overturn a legal provision when there is a “prima facie rational basis” for it given by Parliament. Outlining his reservations, Justice Hari Shankar told Amicus Curiae,
That’s the kind of dialogue which unfortunately from day one I am not getting an answer for, have been posing it again and again…we are not supposed to find ways to quash a provision.
The arguments will once again continue tomorrow at 3pm.
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