New Delhi, January 27: During the hearing on the demand to make marital rape a crime, it was said on behalf of the Men Welfare Trust, an organization that this matter should be kept out of the jurisdiction of the court.
Advocate J Sai Deepak, appearing for the Trust, said these things while presenting his arguments before the Delhi High Court. The hearing on the matter will continue on January 28 as well.
During the hearing, advocate Sai Deepak said that it is my clear opinion that when the legislature is not taking any decision, then the judiciary should give its opinion, but when the matter is policy then the court should not decide. If the judiciary crosses its limits, it will prove to be a very dangerous practice.
Then the court, referring to the notice issued by the Gujarat High Court on this issue, said that the court will have to find a solution in some way or the other. Every issue is important to us.
During the hearing on January 25, an NGO Hridey had said that the sexual relationship between husband and wife cannot be termed as rape. This can be termed as sexual harassment at the most. Advocate RK Kapoor, appearing for the NGO, had said these things.
During the hearing, Kapoor had said that the definition of cruelty under the Domestic Violence Act (DVA) would make it clear that sexual relations between husband and wife cannot be called rape.
He had said that a wife cannot compel the Parliament to enact a law to punish her husband for the fulfilment of her arrogance. He had said that Parliament is not stupid that it has given exemption to the husband under the exception provision for rape but has not given any exemption to the husband under the Domestic Violence Act.
Earlier, during the hearing, the amicus curiae of the case, Rebecca John, had said that it would not be constitutional to uphold the exception to Section 375 of the Indian Penal Code (IPC).
John had said that various legal provisions including Sections 498A, 304B of the Indian Penal Code and the Domestic Violence Act and other civil remedies are insufficient to deal with rape under Section 375.
Earlier, other amicus curiae Rajasekhar Rao had said that if the law is discriminatory and arbitrary and it violates fundamental rights, then it is the duty of the court to abolish it.
He had demanded that marital rape be made a crime. Rao had said that in today’s time even a husband is not allowed to forcibly have sex with his wife. He had said that if any law violates the fundamental rights, the court cannot sit blindly. Rao had said that the court should interpret Articles 14 and 21 of the Constitution in this matter.
The Central Government on January 24 had said that making marital rape a crime is linked to the family matter as well as the honour of the woman.
Solicitor General Tushar Mehta, appearing for the Centre, said that it is not possible for it to immediately express its stand on the issue. If the Centre half-heartedly presents its side, it will be an injustice to the citizens.
On January 17 also, the Central Government had told the High Court that it is yet to take a stand on criminalizing marital rape. Mehta had told the court that this is a 2015 case and if the court gives time to the Centre, they will be able to help the court better. Then Justice Shakdher had said that once the hearing starts, we want to end it.
It is worth mentioning that earlier the Central Government had opposed making marital rape a crime. On August 29, 2018, the Central Government, in an affidavit filed in the High Court, had said that the inclusion of marital rape as an offense would destabilize the institution of marriage and make it a means to harass husbands. The Centre had said that the evidence of sexual relations between husband and wife does not last long.
This petition has been filed by two more people including NGO R IT Foundation, Akhil Bhartiya Janwadi Mahila Samiti. The petition has sought to set aside the exception of section 375 of the IPC. It has been said in the petition that this exception gives a free hand to married women for sexual harassment on the part of their husbands.
