[Marital Rape] Come up with a yes or no stand on the issue within two weeks: Delhi High Court to Centre

The Delhi High Court on Monday gave the Central government two weeks’ time to make its stand clear and come with a 'yes or no' answer on the issue of criminalisation of marital rape [RIT Foundation v Union of India]..A Division Bench of Justices Rajiv Shakdher and C Hari Shankar asked Assistant Solicitor General (ASG) Chetan Sharma to make the Centre’s stand clear by February 21 after which the Court will take a decision as to how much time the government has to be given either to argue its case or to take a wider consultative view on the issue..On Wednesday, Solicitor General Tushar Mehta appeared before the Court and referred to Centre’s affidavit, filed last week, seeking to defer the hearings for a stipulated time.Mehta told the Court that the Centre has had very little time to deliberate on various facets of the issue of marital rape and the Court can only be assisted meaningfully after the participation of all stakeholders.“None of us can take this matter as a mere validity challenge matter. As already pointed out, the provisions and grant of prayer need a meaningful consultative process. Neither the state government nor several other stakeholders are before you. The Legislature and Executive is concerned with the issue. We can assist you only after a consultative process with stakeholders including the state governments. I am saying why shouldn't we wait? No time has been given to the Centre to deliberate on the issue. Assistance of Centre can be meaningful only after participation of all stakeholders,” he argued..Justice Shakdher however said that the Court had already pointed out to him that there are only two ways to close the issue; one is that the judiciary decides it and the other is through the legislature.“Your contention is we need time to consult. As far as we are concerned, if the legislature intervenes, surely there will be fresh cause of action. If the exception is deleted, it will be challenged. We are very clear we do not claim to be a repository of all wisdom but it is our job to decide the issue which comes before us. You come back to us. The Centre has to take a decision. Legislature is the third wing. You will propose something before the legislature which then has its own process,” he said.Justice Shakdher added that the government has to take a yes or no call and decide whether it is in agreement with the petitioners or not..Mehta also told the Court that he is not aware of any of the earlier affidavits or written submissions filed by any of the counsel appearing for the Centre and the only stand taken by the government is to defer the hearing.In response to a question from the Bench as to whether he was withdrawing those affidavits, Mehta said no.“What Ms Monika Arora (Centre’s standing counsel) has or hasn't filed I am not aware… Whatever is filed by Ms Arora is not the stand of Centre. Centre's stand is reflected in our affidavit of last week,” he submitted.There are two submissions or affidavits filed by the Centre so far on the issue. While the 2017 affidavit opposed the petitions, the written submissions filed this year were also on the same lines.Arora however said that the written submissions filed this year are the same as the 2017 affidavit..Meanwhile, on Monday, Senior Advocate Colin Gonsalves continued with his rebuttal submissions.He cited a judgment of the Nepalese Supreme Court, through which the marital rape exception was struck down in Nepal, to argue that the almost all the grounds taken by the Union Government in its 2017 affidavit have been dealt with by the that order.“The time has come now for such a huge crime to be redressed immediately. There can be no ifs or buts and no qualification or caveats," he said.He further submitted that whether the marital rape should carry the same sentencing as that of rape in any other relationship is for the parliament to decided but he stands with the UK commission that there are not various degrees of rape and the punishment for each act has to be the same.“Rape being the most heinous crime, we cannot agree that there are degrees of rape. But there are people who say there has to be less standards of sentence in case of marital rape. The proper place to argue this point, however, is parliament. Whatever the parliament does will ultimately come to constitutional courts which will decide whether it is permissible or not,” he submitted. .The Court will hear the matter again on February 21..Here are the summaries of what happened at previous hearings:Day 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9Day 10Day 11Day 12Day 13Day 14Day 15Day 16Day 17Day 18

[Marital Rape] Come up with a yes or no stand on the issue within two weeks: Delhi High Court to Centre

Prashant Jha

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