Improper to hear marital rape pleas, says HC

After it was told that the Supreme Court was also hearing the issue as a whole

The Delhi High Court on Monday sought to know whether the issues raised before it in petitions seeking to make marital rape an offence were similar to those being heard by the Supreme Court.

Main petition

A Bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar posed the query to the parties and said it would be “highly improper” for it to continue hearing this matter after it was told that the Apex court was also hearing the marital rape issue as a whole.

“We would like to see the main petition. If the same issue is being considered by the Supreme Court, we cannot overlap,” the Bench said.

Advocate Karuna Nundy, appearing for petitioners NGO RIT Foundation and the All India Democratic Women’s Association (AIDWA), said, “The Apex court has been hearing a plea questioning the validity of a provision under the Indian Penal Code permitting a man to have physical relationship with his wife, even if she is aged between 15-18 years. But, here we have challenged the constitutionality of Section 375 [rape] of the IPC on the ground that it discriminated against married women being sexually assaulted by their husbands.”

To have clarity on the issue, the Bench sought the presence of advocate Gaurav Aggarwal, who had appeared for the petitioner previously, before it on Friday.

Intervention pleas

The court had earlier agreed to examine the issue raised in a PIL by the Foundation, when a man and woman had sought to strike down the exception in the Indian penal law that did not consider sexual intercourse with a wife, not less than 15 years of age, as rape. It had earlier allowed two intervention applications — one in support of pleas to make marital rape an offence and the other opposing it.

The Centre had opposed the main petitions saying, “Marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands.”

The Centre, in an affidavit filed through Central government standing counsel Monika Arora and Kushal Kumar, had said the Supreme Court and various High Courts have already observed the growing misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.