Considering constructive approach on criminalising marital rape, Centre tells HC

The Centre told the Delhi High Court that it was considering a ldquoconstructive approachrdquo to the issue of criminalising marital rape and has sought suggestions from state governments the Chief Justice of India MPs and others on comprehensive amendments to the criminal lawJustice Rajiv Shakdher who is heading the bench dealing with a batch of petitions seeking criminalisation of marital rape informed during the hearing that Solicitor General Tushar Mehta mentioned the matter before him when certain other parties and Justice C Hari Shankar who forms part of the bench were not presentldquoThe matter was mentioned in the morning by the learned SG and he was saying that the government was considering a constructive approach to the matterrdquo said Justice Shakdher Central government lawyer Monika Arora told the bench that the Centre was undertaking a comprehensive task of amending the criminal law which includes section 375 rape of the IPC ldquoWe have invited suggestions from all chief ministers of all state governmentsthe chief justice of India Chief Justice of all high courtsjudicial academies national law universities the Bar Council of India Bar council of all courts and members of both houses of Parliament regarding comprehensively amending the criminal lawsrdquo she saidThe court said that overhaul of the law would take ldquoa lot of timerdquo and asked the central government to state if it was dealing specifically with the issue of marital rape exception ldquoIf visavis section 375 you people Centre have some suggestions then we will consider that Generally this exercise will take a lot of timerdquo said the court as it continued to hear the petitions In its additional affidavit filed by the Under Secretary in Ministry of Home Affairs the Centre asserted that it is ldquoalready seized of the matterrdquo and that the marital rape exception cannot be struck down only at the instance of the petitioners as the principles of natural justice required a larger hearing of all stakeholdersThe petitioners are also at liberty to give their submissionssuggestions to the Ministry of Home Affairs it stated Justice Shakdher during the course of the submissions orally observed that the exclusion of ldquocertain circumstancesrdquo from the ambit of rape ldquobecause of interparty relationshiprdquo is problematic and that the marital rape exception could be examined in the light of protection granted to sex workers in rape law The judge remarked that when the rape law grants no exemption in case of forced intercourse with a sex worker who chooses to withdraw consent at a belated stage why should a wife be ldquoless empoweredrdquoldquoAccording to me you the amicus curiae gave a good example of sex worker If you were to look into circumstances what better defence than to say that this is a person who is used to entertaining peopleshe should have also been in the exceptionwe have chosen not to do it Our courts have gone as far as saying she can say no at any stage Can a wife be put at a lower pedestal Be lesser empowered in lawrdquo he questioned Justice Shankar opined that the expectation of sex in the case of a marital relationship was not the same as in the instance of a sex worker Senior advocate Raj Shekhar Rao who is appointed as an amicus curiae to assist the court argued that husband and wife are ldquotwo equals before lawrdquo and there is no reason ldquowhy husbands desire to have sex trump the wifes desire not tordquoThe amicus said that the foundation of section 375 was the lack of consent and there was no reason to give lessor protection against nonconsensual intercourse to a married woman He thus argued that the marital rape exception in law was arbitrary and violated article 14 and article 21 of the Constitution of India The amicus also said that striking down the exception would not result in the creation of a new offence and the concerns of interference in private marital space were unfoundedThe bench was hearing PILs filed by NGOs RIT Foundation All India Democratic Womens Association a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law Pleas have also been filed by some mens right organisations which are opposing the petitions seeking to quash the exception saying there was no question of discrimination and the Parliament has retained the provision considering the overall view of India societyThe central government in its earlier affidavit filed in the case has said 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 the husbands The Delhi government has told the court that marital rape was already covered as a crime of cruelty under IPC The petitioner NGO has challenged the constitutionality of marital rape exception under section 375 IPC on the ground that it discriminated against married women who are sexually assaulted by their husbands Hearing in the case will continue on January 14This story has been sourced from a third party syndicated feed agencies Midday accepts no responsibility or liability for its dependability trustworthiness reliability and data of the text Midday managementmiddaycom reserves the sole right to alter delete or remove without notice the content in its absolute discretion for any reason whatsoever