[Marital rape] "We may be right, we may be wrong; but we can't look away:" Delhi High Court

The Delhi High Court on Wednesday asked whether courts should step back and refuse to take steps to remedy the situation whenever an issue like marital rape is challenged before them [RIT Foundation v. The Union of India]..The question was posed by Justice Rajiv Shakdher while hearing arguments in a batch of petitions demanding the criminalisation of marital rape, which is currently not an offence by way of an exception in Section 375 of the Indian Penal Code (IPC)..The Bench which also comprised Justice C Hari Shankar said that they are way past the arguments as to why the legislature has kept the provision on the statute books.“The point is should we step back every time this comes up, and we say no. Take the example of Section 377 (criminalisation of same-sex marriage). This Court decriminalized it. The Supreme Court reversed the decision. But these are matters which will stay with you and they will come back. The Supreme Court did revisit it. The Parliament had all the opportunity between the Delhi High Court judgment and the first round to the Supreme Court to correct it. They chose not to,” the Bench remarked. .Justice Shakdher added that the strength of Indian courts comes from the fact that judges do not have to go to the electorate to get their appointment.“We can’t look away. We have the Constitution to look at. We may be right; we may be wrong. If we are wrong, we will be corrected,” he said..The Court appointed Senior Advocate Rebecca John to assist it in the matter on the aspects of criminal law..On Wednesday, Amicus Curiae and Senior Advocate Rajshekhar Rao made his submissions. He sought quashing of the exception under challenge. Rao said that sometimes the legislature is lethargic, and that it may be wise for a High Court under Article 226 to step up and quash this provision.“The message, at times, needs to go on this aspect. From a judicial standpoint, this provision ticks all the boxes and the judiciary has to step up,” he said.Rao submitted that various courts have repeatedly held that the act of rape dehumanises the existence of a woman and for each day that the provision remains on the statute books, a section of the population is being denied right to file rape case.“As far as the said Exception is concerned, the silver lining that it provides is that a woman is better off, as a matter of law, when she is assaulted by a stranger. The more I think about it, the less I am able to justify it from a Constitutional standpoint… The question therefore is should the Court wait and see this happening?" he submitted..Advocate Raj Kapoor made submissions for an intervenor against the petition. Kapoor argued that several members of the Justice Verma Committee had felt that criminalising marital rape has the potential to destroy the institution of marriage. He submitted that the propriety, expedience and necessity of a legislative Act are for the determination of the legislature and not the courts.“The question here is not as to whether the act of sexual abuse on the part of husband, despite an explicit no by the wife is a criminal act or not...Parliament is not saying that his act is not unjustified but what it is saying is that the punishment should not be under Section 376 of the IPC,” Kapoor told the Court.He submitted that the laws of other countries cannot be used to strike down a statutory provision introduced by the parliament, and that India cannot copy-paste Western concepts.“If the exception is struck down, the condition of the husband would be worse than those charged with Section 376… Let Parliament be the final authority to decide the exception in Section 375,” he added.Submissions were also made by one Samit Bisaria for Men Welfare Trust contesting the challenge. He argued that the petitioners had been selective in showing the Court the laws of various countries and that in several states of the US, there is a limitation period to file a complaint, and that the law is completely gender-neutral..The Court will now hear the matter on Thursday, when Rao will continue with his submissions. Counsel for the Central government, Advocate Monika Arora will also make her submissions tomorrow. .[Marital Rape] Nature of relationship cannot put same offence on different pedestal: Delhi High Court