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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.
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.
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:
"In India, the culprits are often known to the woman; the social and economic 'costs' of reporting such crimes are high," he further read.
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.
"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".
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."
Does the law say the husband can sleep with wife without her consent? There are some indications that the law sends, explained Rao.
"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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Published: 17 Jan 2022,05:21 PM IST