The Delhi High Court on Monday rejected the Centre’s request for more time to respond to petitions seeking criminalisation of marital rape and reserved its verdict in the case.
The government, which did not make any oral arguments in the case this year, told the court that its written stand of 2017 should not be treated as final.
Closing the hearing of arguments in the case, the division bench of Justices Rajiv Shakdher and C Hari Shankar said it cannot “let the matter hang like this” and told the government that its consultation process can go on. There is no terminal date on when the consultation process would get over, the court said.
“Even after we conclude, we hear the matter, reserve for judgment, if you come back with something, we will look at it,” the bench told the Centre. “To say that defer it endlessly, this cannot happen. This is a matter which will get closed either through a court route or a legislature route. Till this is there, and there is a challenge, we will have to go on.”
The court said it was in a “logjam”, as the government has asked it to not consider its stand already on record. Has it ever happened that a challenge is made but the matter is not heard, the court asked.
The bench said: “This [case] may be an input in your consultation. We are not a repository of wisdom but someone needs to take a call. If you agree with the petitioners or the respondents, say it… so that we can move further. But this…as they say, like a Trishanku you are neither here nor there. Of course we are not Vishwamitra that we can put someone there as Trishanku.”
On February 7, the court had granted two weeks to the Centre to clarify its stand in the matter, which has remained pending since 2015. Although the government had replied to and opposed the petitions in 2017, in January this year it asked the court to defer the proceedings to await the outcome of its consultation on the subject with states and other stakeholders.
The government had said it wants to place a fresh stand on record before the court after holding consultations.
On Monday, Solicitor General Tushar Mehta reiterated the request and submitted that the Centre has written to chief secretaries of all states and Union Territories, as well as to the National Commission for Women, on February 10 on the issue of marital rape and asked them to share their views after holding consultation. Mehta told the court that the Centre is awaiting a response from them, and it would be desirable to defer the final adjudication on the question of marital rape.
It would not be prudent to take a view without consulting the stakeholders, he added.
Mehta said the issue affects social and family life and human relationships, but the court declined to accede and said that in case the Centre comes to it with an “outcome” even after the arguments are closed, that will be taken into consideration.
The bench said, “We will take in on record. In a matter like this, there is no problem. We will not stick to formalities that we have sort of reserved [the verdict] and therefore…”
The court listed the case for further proceedings on March 2 to sort out the issues related to documents on record and asked the counsel to file written submissions in the meantime. “We are closing arguments in this. We are only keeping it for directions for housekeeping purposes,” it added.
Between January 7 and February 7, the court heard on 22 dates the petitions challenging the Exception 2 that protects men who have forced, non-consensual intercourse with their wives, from criminal prosecution under Section 376 IPC. It heard arguments on behalf of the petitioners, the intervenors opposing the pleas, and submissions of amicus curiae.
Undertaking to provide a time-bound schedule within which it will carry out the consultative process on the issue, the Centre had said that the matter is pending since 2015, and if the court waits for such “fruitful exercise” for some time, no prejudice would be caused and it will be possible for the government to assist the court meaningfully.
Stating that what “may appear to be marital rape” to a wife “may not appear so to others”, the Centre in 2017 had submitted that striking down the exception “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. It had also cited the “rising misuse of Section 498A of IPC”— cruelty by husband or husband’s relative against a woman — to show how laws dealing with violence against women can be misused “for harassing the husbands”.
