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‘Can’t make marital rape an offence until talks end’: Centre to Delhi HC

The Union government has informed the Delhi High Court that marital rape will not be made a criminal offence until all stakeholders have been consulted, paving the way for comprehensive criminal law changes rather than “piecemeal” changes.

The Centre, in a new affidavit in response to a slew of petitions to criminalise marital rape, stated that it is looking into the issue of broad changes in the country’s criminal law, and that petitioners could also make suggestions to the competent authorities.

The affidavit, which was filed on Thursday, stated that the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the crime of rape, cannot be overturned solely on the petitioner’s request. The government emphasised that “natural justice principles require a larger hearing of all stakeholders.”

The government’s petition makes no changes to its position, and it comes as a growing chorus calls for marital rape to be criminalised.

It added that suggestions from chief ministers of all state governments and Union territories, the Chief Justice of India, chief justices of all high courts, judicial academies, national law universities, the Bar Council of India, the Bar Council of all high courts, and members of both Houses of Parliament have been sought. However, the affidavit, which was filed through the Union ministry of home affairs, does not specify the date when opinions were sought.

“The government has already undertaken a comprehensive exercise to amend criminal laws, and as a result, the government has already taken control of the situation.” “The petitioners are also free to provide the Ministry with their submissions/suggestions,” the affidavit stated.

It relied on reports from the parliamentary standing committees in 2008 and 2010 to argue that, rather than making piecemeal changes to individual pieces of legislation, the criminal laws need to be overhauled.

The government also cited the Law Commission of India’s 172nd report on “Review of Rape Laws” from March 2000, which stated that the deletion of the exception clause in Section 375 “may amount to excessive interference with the marital relationship.”

In addition, according to a 2017 Supreme Court decision, the government read down an exception to Section 375 only to the extent of criminalising rape with a minor wife while also clarifying that it has not expressed any opinion on the issue of marital rape.

“We make it clear that we have refrained from making any comments about marital rape of a woman over the age of 18, because that issue is not before us at all.” As a result, we should not be construed to allude to that issue even tangentially,” the 2017 judgement stated, as quoted by the affidavit.

Even though the Centre’s affidavit refers to the Law Commission’s and parliamentary panels’ reports, it fails to mention Justice JS Verma’s committee’s recommendation from 2013.

In the aftermath of the gang-rape of a paramedical student in December 2012, the Justice Verma committee was formed to propose changes to criminal laws. This committee received over 80,000 suggestions and issued a 644-page report in 2013, recommending that “the exception for marital rape be removed” and that the law “specify that a marital or other relationship between the perpetrator and victim is not a valid defence against the crimes of rape or sexual violation.” Because being married does not automatically imply consent to sexual acts, the committee recommended criminalising marital rape.

The Union government has filed a new affidavit in addition to one filed in August 2017 that stated that it must be ensured that marital rape does not become a phenomenon that destabilises the institution of marriage and becomes “an easy tool for harassing the husbands.” Since 2015, the petitions have been pending before the court.

“What may appear to be marital rape to an individual wife, it may not appear to others…if all sexual acts by a man with his own wife qualify to be marital rape, then the decision as to whether it is a marital rape or not will solely rest with the wife,” the 2017 affidavit continued. The question is what evidence will be used by the courts in cases where there is no lasting evidence, such as when a man has sexual relations with his own wife.”

A bench of justices Rajiv Shakdher and C Hari Shankar is currently hearing final arguments in a series of PILs filed by the RIT Foundation, the All India Democratic Women’s Association, and two individuals, alleging that the Section 375 exception discriminated against married women who were sexually assaulted by their husbands.

Even as it argued that marital rape is treated as a “crime of cruelty” in India, which can be prosecuted under charges of domestic violence, assault, or cruelty under the IPC, the Delhi government submitted before the bench that a court does not have the power to create a new offence.

Senior advocate Rajshekhar Rao, who has been appointed as amicus curiae to assist the court, has argued that the exception in Section 375 should be removed, making marital rape a crime.

On Thursday, Solicitor General Tushar Mehta issued a brief statement in response to the new affidavit on behalf of the Union government, saying that the government is considering a “constructive approach” in the matter.

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