The Centre sought more time from the Delhi High Court on Monday, 17 January, to take a stand on the issue of marital rape.
Solicitor General Tushar Mehta told the bench of Justice Rajiv Shakdher and Justice C Hari Shankar that the Centre is yet to take a stand, and might need some considerable time to do so.
"We have to formulate our stand. Considering that this is a 2015 matter, this might need some considerable time. In a matter of this nature, nothing imminent is going to happen in the next two weeks. Less discussed stand may not be appropriate," Mehta said.
Section 375 of the IPC defines the offence of rape. While the section has been amended over the years to remove archaic concepts, emphasise on the importance of consent, and cover all relevant sexual acts, it still retains an exception for non-consensual sex by a husband with his wife.
This 'marital rape exception' has been challenged in the Delhi High Court, on the basis that it violates the fundamental rights of married women, including Article 14 (right to equal treatment by law) and Article 21 (right to life and personal liberty) of the Constitution.
'Husband Could Come Under Meaning of Relative'
Amicus curiae Rajshekhar Rao, continuing making his submissions, submitted that if the court decides that the provision should go, the husband has to come under meaning of relative.
Reading a judgment Aparna Bhat vs State of Madhya Pradesh, delivered by the Supreme Court, Rao said:
"A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”
"In India, the culprits are often known to the woman; the social and economic 'costs' of reporting such crimes are high," he further read.
'Rape Cannot Be Looked From PoV of Woman Alone': Justice Hari Shankar
Justice Hari Shankar, meanwhile, said that one cannot look at rape only from the perspective of the victim, or point of view of the woman alone – in the context of whether the law creates difference in classification between married and unmarried women.
"You are only looking at it from the point of view of the woman, it's about a particular act."
"Outside of a marriage, there is no expectation of sexual relations. But there is a moral, social and legal right for expectation in marriage to have meaningful conjugal relations," Justice Hari Shankar added, clarifying that this doesn't mean it creates "right to have sex without consent".
"If the legislature thought that....given that distinction if it felt that we should not classify an act, if we are going to say no it should be treated as rape... Then we have to make out a case where we feel that consideration which would have weighed with the legislature, either it's totally irrelevant or it's insufficient to make this classification."Justice Hari Shankar
However, the other judge on the bench, Justice Shakdher said: "Carving out of woman in terms of her relationship with perpetrator, what follows from that it is a man, the act, the victim. According to you in one case the victim is a woman and in another case is married woman."
'No Means No, But Not When Woman is Wife'
Does the law say the husband can sleep with wife without her consent? There are some indications that the law sends, explained Rao.
"All that the legislature says that if the acts done by the husband, on wife, then it's not rape. The act is a violation of bodily integrity without consent. Therefore, accepting an act of identical nature done by husband without wife's consent, from the husbands shoes, if it was any other woman, a no means no. But the act is not rape when committed on the wife."
"Therefore, the mere act that you are married, does not allow you to call a non-consensual sexual act, that relationship a rape? Are we placing a married woman on a lower pedestal?" Rao asked the bench to consider.
The matter will continue to be heard in the Delhi HC on Tuesday, at 3:00 pm.
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