A bench of Justices Ajay Rastogi and B V Nagarathna issued notice to the Union government and said it will hear the petitions in February 2023.
The senior lawyer, who contended that the marital rape exception was not constitutional, said that the marital rape exception would be tested on the anvil of its constitutionality and an individual's opinion was not relevant.
The Delhi high court Friday asked the Centre to inform whether it wishes to withdraw its 2017 affidavit in which it had submitted that marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing husbands.
An appeal has been filed in the Supreme Court challenging the Delhi high court's split verdict on the issue of criminalisation of marital rape on a batch of petitions challenging the exception in the law that exempts husbands from being prosecuted for non-consensual sexual intercourse with their wives.
The Delhi high court is scheduled to pronounce on Wednesday its verdict on a batch of pleas seeking the criminalisation of marital rape.
A bench of acting chief justices Gita Mittal and C Hari Shankar said that in a relationship like marriage, both man and woman have a right to say 'no' to physical relations.
The Delhi high court on Monday granted two weeks to the Centre to state its stand on petitions seeking criminalisation of marital rape following Solicitor General Tushar Mehta's submission that the government is neither in favour nor against striking down the immunity granted to husbands under the Indian Penal Code.
The Delhi high court on Monday asked the Centre to clarify its position in principle on the issue of criminalising marital rape after the government sought time to formulate and place its 'considered stand.'
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.
The Delhi high court on Wednesday said there was an anomaly and misalignment in the erstwhile Section 377 of the Indian Penal Code, which was decriminalised by the Supreme Court in 2018, and the rape law that protects a husband from prosecution for a non-consensual sexual act, including unnatural sex, with his wife.
The central government Thursday urged the Delhi high court to defer the hearing on pleas to criminalise marital rape while maintaining 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."
The Centre submitted that it has sent communication to all states and Union Territories asking their comments on the issue and urged the court that the proceedings be adjourned till such time the inputs are received.
The Delhi high court on Wednesday delivered a split verdict on the issue of criminalisation of marital rape and granted leave to the parties to file an appeal before the Supreme Court.
'Why doesn't the prime minister wake up to these social issues?' 'This government is basically saying rape is all right.'
The Delhi high court on Wednesday delivered a split verdict with one of the judges favouring striking down the provision, and the other holding it was not unconstitutional.
'It has to be ensured adequately that marital rape does not become a phenomenon which may destabilise the institution of marriage apart from being an easy tool for harassing the husbands,' the affidavit, filed through central government standing counsel Monika Arora, said.
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