The issue of criminalisation of marital rape involves 'family issues' as well as the dignity of a woman and cannot be looked at from a 'microscopic angle,' the Centre on Monday told the Delhi high court as it said that it was not possible for it to immediately respond with its stand.
Solicitor general Tushar Mehta, appearing for the Centre, stated that he would be doing an 'injustice to the citizens' if the government's case is put in a 'half-hearted way' and urged the court to allow a 'reasonable time' to place their position after consultation with the stakeholders, especially when there is no imminent threat to anyone in the meantime.
“Your lordships are not just deciding the statutory or constitutional validity of a provision. It may not be looked at from that microscopic angle… Here, the dignity of a woman is at stake. There are family issues. There would be several considerations which would weigh with the government to take a position to assist your lordship,” he told the court.
“It would not be possible for Centre to respond immediately, particularly when there is no imminent threat that something is going to happen to someone. I would reiterate my request that we would need a reasonable,” he stated.
Maintaining that the Centre has to be 'very conscious,' the solicitor general asserted that in view of the petitioners' submissions and a similar stand taken by the amicus curiae appointed by the court, it would 'not be appropriate' for the central government to not tell the court to have a 'wider view of the matter.'
“I don't feel it would be appropriate for the central government either not to tell your lordships to have a wider view of the matter by inviting other stakeholders or…we will have to consider it in a holistic manner,” he submitted.
Justice Rajiv Shakdher, who is heading the bench dealing with the petitions challenging the marital law exception in rape law, said that the matter cannot be kept hanging and the court would like to conclude the hearings.
“I'm not saying no. Let her (amicus) finish. I'll give you another week- ten days but beyond that, it becomes difficult for me to say we will hear, we will hear... Come back to me in 10 days,” the judge said.
“For some people and here, there is a live case (of one of the petitioners), every day matters for a simple reason that some say this abuse is happening, maybe not reported but this is happening. Now it can't be our answer that listens it has been there for 100 years now what is the urgency. Now that we've started we'd like to conclude,” said Justice Shakdher who added that given the importance of the issue, whoever is aggrieved party would 'carry it to the next court.'
The solicitor general said that "lives were at stake" and reiterated that time was needed to place the Centre's “formulated stand” before the court after consultation.
The bench, also comprising Justice C Hari Shankar, is hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
The Centre, on January 13, had told the high court that it was considering a 'constructive approach' to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.
Central government standing counsel Monika Arora had told the bench that the Centre was undertaking a comprehensive task of amending the criminal law which includes section 375 (rape) of the IPC.
On January 17, the court had asked the Centre to clarify its in-principle position on the issue of criminalising marital rape after the government sought time to formulate and place its “considered stand”.
The 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 the IPC.
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.
The hearing in the case will continue on January 25.