Delhi HC reserves criminalization of matrimonial rape verdict

"The central government is committed to the dignity, freedom and security of every woman. There is not only a constitutional question in this matter, but it will also have far-reaching consequences," Solicitor General Tushar Mehta clarified.

New Delhi: The Delhi High Court on Monday reserved the verdict on the matrimonial rape case, citing that the central government is consulting all the states and the parties concerned before giving a final decision. The HC bench comprising of Justice Rajiv Shakdher and Justice C. Harishankar reserved the decision, while Solicitor General Tushar Mehta, on behalf of the Center, had demanded the postponement of the hearing on this matter.

The Solicitor General said that earlier this month, the Center had written to the Chief Secretaries of all the states and the National Commission for Women asking them to explain their stand in the matter. "The central government is committed to the dignity, freedom and security of every woman. There is not only a constitutional question in this matter, but it will also have far-reaching consequences," Mehta clarified.

On February 7, the court had given the central government two weeks to present its argument, while Mehta had said during the hearing that the central government has no stand on whether or not the Exception 2 of Section 375 of the Indian Penal Code should be removed or kept. "The central government will decide its stand only after consultation with the parties concerned. On this, the court had said that there are only two ways in this matter. The court believes that there are only two ways to deal with this - first is the judicial decision and second is the intervention of the legislature. This is the reason why the court wants to know the stand of the Centre," the Solicitor General had clarified.

During the hearing held earlier on February 4, Colin Gonsalves, a lawyer for one of the petitioners, sought to make marital rape a crime citing the Law Commission of Britain. During the hearing, Gonsalves said that the desire to have sex cannot be imposed on either husband or the wife, further adding that the right to have sex without the consent of the people involved cannot be given even by the court. Referring to the recommendations of the Law Commission of Britain, he further claimed that the husband has no right to impose his will on the wife. "If the husband forcibly has sex with his wife, it is even more disturbing than the rape committed by some unknown person," he had opined.

Gonsalves further added that deciding the punishment in the case of marital rape is not an easy task. "Giving evidence of marital rape is as difficult a task as it is in other cases involving sexual offences. This is because most sexual relations, whether consensual or without consent, take place in private places. Their eyewitnesses are negligible. In these cases the evidence relates only to the parties their credibility.

During the hearing on February 2, the petitioner's counsel Karuna Nandy had said that the exception of marital rape is a violation of the freedom of sexual desire of a married woman. "The exception to marital rape takes away a married woman's ability to have a pleasurable yes. Exception 2 of section 375 does not recognize the right of a married woman to say no. To do so is a violation of Article 19(1)(a) of the Constitution. This exception is unconstitutional, as it considers the privacy of marriage above personal privacy," she had clarified.

Earlier during the hearing, the amicus curiae of the case, Rebecca John, had said that it would not be constitutional to uphold the exception to Section 375 of the Indian Penal Code. John had said that various legal provisions including sections 498A, 304B of the Indian Penal Code, the Domestic Violence Act and other civil remedies are insufficient to deal with rape as a crime under section 375.