[Marital Rape] Will frame a 'considered and consultative view': Central government to Delhi High Court

The Union government on Monday informed the Delhi High Court that it is yet to frame its stand on the issue of criminalisation of marital rape [RIT Foundation v Union of India]..Solicitor General Tushar Mehta, representing the Central government told a Bench of Justices Rajiv Shakdher and C Hari Shankar that the government is considering the issue and needs some time to formulate a “considered and consultative” view..“We will assist your Lordships. Let there be a considered, consultative view...Less discussed or consulted stand may not be appropriate and your Lordships may not also get sufficient assistance if it is not well considered and consulted,” SG Mehta told the Court. This submission was in contrast to the Central government's earlier stand in 2017, when it had opposed the criminalisation of marital rape on the grounds that it would destabilise the institution of marriage and become a tool for harassing husbands..The Bench has been dealing with a batch of petitions demanding the criminalisation of marital rape which, at present, is exempted by an exception provided in Section 375 of the Indian Penal Code..On Monday, Senior Advocate and Amicus Curiae Rajshekhar Rao continued with his submissions, demanding the quashing of the exception.Rao argued that following the Nirbhaya gang-rape case, the Justice JS Verma Commission had suggested removing the exception, but the parliament decided to keep it.“With marriage, responsibility comes on both parties. But even when a wife denies right to conjugal relations, then the husband has the right to restitution. He can say I want out of marriage because it is cruelty…Now look at it from the perspective of a woman. If she says no, then no means no. If she says no in the middle of the sexual act, husband should stop because if you continue it is rape,” he said. Rao submitted that not criminalising marital rape amounts to denying the wife the right to prosecute a person for rape.“From the perspective of the wife, she is denied the ability to call an act, which violates her sexually, a rape. The law is saying because he is your husband you have to brush aside the word "rape". Can the mere fact of being married deny a woman her right to call it a rape? If it can, then the only reaction in a woman’s mind would be that the law is permitting rape by husband.”.However, Justice Shankar expressed his displeasure over Rao's submissions that in the context of wives, it seemed as if the law tolerated the offence of rape.“You see, the dialogue becomes skewed when you make these comments. You have to keep in mind that we have to keep a dispassionate attitude... Let us not have these caveats. I do not see how the section says in context of wife, rape is permissible,” he remarked.The judge added that in his prima facie view, the exception did not carve out a difference between married and unmarried women, rather the difference was between the act of sexual intercourse in and outside marriage.“The Section creates exception for a particular act. If we were to hold this unconstitutional, then we would have to say that sex within marriage and outside marriage is not different. Prima facie, according to me, the difference exists… The entire dialogue so far is as if the exception is treating the woman differently. If that had been the case, it would have been a no-brainer. It is treating the act differently... I am a little troubled and feel that this whole issue is not being addressed,” Justice Shankar said. .The Court asked both Rao and Senior Advocate Rebecca John to address the issues of prayers seeking quashing of Section 376B of the IPC as well as Section 198 of the Code of Criminal Procedure.While 376B deals with sexual intercourse by a husband on his wife during separation, Section 198 deals with prosecution for offences against marriage.Advocate Karuna Nundy, appearing for the petitioners, said that she will seek instructions on these two issues..[Marital Rape] Should right to prosecute for rape cease because a woman is married? Amicus Rajshekhar Rao asks Delhi High Court