New Delhi: Throughout history, in much of the world, a husband had the unchallenged right to have sex with his wife whenever he wished. There was no question of her consent. But over the past five decades, with the rise of the anti-rape movement, many countries have criminalised marital rape.
In India, however, the law hasn’t changed — forceful sexual intercourse by a man with his wife isn’t rape unless the wife is under 15 years of age, according to Exception 2 to Section 375 of the Indian Penal Code.
Petitions in court have sought to change this for years, and now, amid ongoing hearings in the Delhi High Court, the Union government is taking another look at its stand against change.
The Delhi High Court Tuesday asked the Centre to make its stance clear. A bench of justices Rajiv Shakdher and C. Hari Shankar also asked the government to clarify whether it wants to withdraw its 2017 affidavit that opposed a set of petitions asking the court to do away with the exception, which effectively grants the husband immunity from criminal prosecution.
Making a brief submission, government counsel Chetan Sharma told the court that the Centre was having a relook at its 2017 stand. However, he didn’t indicate whether or not the government was ready to withdraw the affidavit.
In a hearing last month, solicitor general Tushar Mehta, on behalf of the central government, had asked the court for reasonable time to submit a response in the matter. He said that the issue of criminalising marital rape could not be seen from a “microscopic angle”, and that the government would prefer to consult all stakeholders before placing its view in the case.
A committee set up in 2019 to suggest changes in the Indian Penal Code (IPC) is also studying the marital rape issue, the court was told. However, neither of the two government lawyers has offered a timeline to file a response.
Considering that the matter has been pending in the high court since 2015, the bench observed Tuesday that it would like to close the case. Hearings have been held on a daily basis for more than a fortnight now, and the bench has heard arguments from the petitioners, opponents and the two senior advocates who were asked to assist the court.
Given that the arguments were growing repetitive, the bench Tuesday insisted that the government tell the court whether it wants to say something in the matter. In the absence of a response, the court said, it will take the 2017 affidavit as the Centre’s stand.
Also read: ‘Have 50 nations got it wrong?’ Delhi HC asks as it looks into IPC exception for marital rape
Government’s 2017 affidavit
In an affidavit filed before the high court in August 2017, the Centre said marital rape could not be added as an offence to the IPC, as it could have a “destabilising effect on the institution of marriage” and become an “easy tool for harassing husbands”.
Filed by the government’s then standing counsel, Monika Arora, the affidavit spoke about ensuring that marital rape did not become a “phenomenon” to disturb marriages. Also, defining it would require a broad-based consensus.
The affidavit also referred to the “unique problems” India faces “due to various factors”, such as illiteracy, a majority of women not being financially empowered, the mindset of society, vast diversity, and poverty. It emphasised that all these should be “considered carefully” before criminalising marital rape.
It had then asked the court to implead states as parties for their opinions, as law and order is a state subject.
The affidavit also highlighted difficulties in investigating allegations of marital rape. “The question is what evidences the courts will rely upon in such circumstances, as there can be no lasting evidence in case of sexual acts between man and his own wife,” it read.
‘Comprehensive amendments’ needed, not ‘piecemeal changes’
Along with a verbal request for more time, the Centre, through an affidavit filed on 12 January, told the court that it is examining the issue of broad changes in criminal law, and sought a direction to the petitioners to send their suggestions to the competent authorities.
Opposing the petitioners’ demand that the marital rape exception be struck down, it said: “Principles of natural justice require larger hearing of all stakeholders.” The consultation process, it added, would pave the way for comprehensive amendments in criminal law, instead of “piecemeal” changes.
As part of the consultation process to amend criminal law, which is a “continuous process,” comments have been invited from states, Union territories, the Chief Justice of India, Chief Justices of state high courts, judicial academies, national law universities, and various Bar bodies.
“The government has already undertaken a comprehensive exercise to make amendments in the criminal laws and, thus, the government is already seized of the matter,” the affidavit submitted.
The document mentioned two parliamentary standing committee reports — from 2008 and 2010 — to argue that there was a need to overhaul the penal law.
On the marital rape exception specifically, the affidavit quoted the Law Commission’s 172nd report from March 2000, which did not favour deletion of the provision as “that may amount to excessive interference with the marital relationship”.
Also read: ‘Exemption, more than exception’: Amicus Rebecca John slams IPC law on marital rape in Delhi HC
‘Contradictory views on section call for broader consultations’
A lawyer who is part of the government team in the case told ThePrint that the wide consultation is an incisive process, and the Centre would ideally like to wait before taking a stand on the subject.
“There is a line of thinking that striking down the section may have a social impact. One cannot wish this away. Therefore, consultation across the board with various stakeholders is required to avoid hasty conclusions. We have not withdrawn our earlier stand, but for now are comprehensively reviewing the situation. This is a constructive approach,” the counsel added.
He further said that the Justice J.S. Verma Committee’s 2013 recommendation to repeal the exception had given rise to a divergent view on marital rape. The committee was set up following the 2012 Nirbhaya case — in which a woman was brutally gang-raped and murdered aboard a moving bus in Delhi — to study and propose changes to make rape laws more effective.
“Due to two contrary reports (Law Commission and Justice Verma panel), wider consultation is needed so that the Centre can take an informed stand before the court,” the counsel said.
But a lawyer who represents one of the petitioners told ThePrint that the Centre’s response wasn’t needed, particularly as its 2017 affidavit hasn’t been withdrawn. “Hearings in this case began almost four years after it was pushed to cold storage. The government’s plea for more time is nothing but a delaying tactic,” the lawyer said.
(Edited by Rohan Manoj)
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