The Centre on Friday told the Delhi High Court that it would advance submissions on February 7 on its recent affidavit in which it has urged deference of hearing on a batch of pleas seeking to criminalise marital rape as a meaningful consultative process with various stakeholders and state governments is needed on the issue.
Solicitor General Tushar Mehta apprised a bench of Justices Rajiv Shakdher and C Hari Shankar about the additional affidavit filed by the Central government on Thursday and said I will address the affidavit on Monday.
The bench, which inquired if he was talking about the affidavit sent to it through mail on Thursday, said it would hear the matter on Monday (Feb 7).
During the hearing, senior advocate Colin Gonsalves, appearing for a woman petitioner, referred to the Law Commission report of the United Kingdom in support of his submissions to criminalise marital rape and certain judgements of the Supreme Court of India.
He submitted that this constitutional court cannot desist from dealing with the constitutionality of the exception on the ground that it would be nigh impossible for the woman to prove marital rape since it sometimes happens in the confines of the household and in private.
It is a settled legal position vide several judgements of the Supreme Court and high courts that if the statement of the prosecutrix is consistent, clear and unimpeachable, the same is enough for cognisance to be taken of the offence. Furthermore, all cases should be decided on their own merits and on the basis of the evidence led by the parties, he contended.
He added that if the high court sets aside the exemption given to husbands under section 375 IPC, the question of punishment for it lies within the domain of Parliament.
After this is done, the Parliament will be called upon to apply its collective mind as to how, if at all, the generic definition coercion and the generic definition no consent has to be elaborated by making law, he said.
The bench is hearing a batch of petitions to strike down the exemption from prosecution for the offence of rape granted to husbands under the Indian Penal Code.
The Centre, in its additional affidavit on Thursday, has reiterated its request to defer the hearing saying that if the matter which is pending since 2015 awaits such fruitful exercise for some time, no prejudice would be caused and it will be possible for the government to assist the court meaningfully.
It has said that it was committed to protecting "the liberty, dignity, and rights of every woman who is the fundamental foundation and pillar of a civilised society" and a meaningful consultative process with various stakeholders and state governments is needed on the pleas seeking criminalisation of marital rape.
It has said that the issue of whether to criminalise marital rape has very far-reaching socio-legal implications in the country and any assistance by the government can be meaningful only after consultative process with the participation of all stakeholders.
In its 2017 affidavit, the Centre had opposed the pleas submitting 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 husbands.
However, the Centre recently told the court that it was re-looking at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago.
The bench was hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, represented through advocate Raghav Awasthi, a man, and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
The petitioners have challenged the Constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.
Several men's rights organisations and the Delhi government have opposed the pleas in the high court.
