Criminalising marital rape cannot take place as per principles of natural law until consultation with all stakeholders is completed, the central government has informed the Delhi High Court in affidavit filed on Thursday.
The exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, cannot be struck down at the instance of the petitioner alone, the affidavit said. Solicitor general Tushar Mehta made a brief statement on Thursday, saying the government is considering a "constructive approach" in the matter.
"The government has already undertaken a comprehensive exercise to make amendments in the criminal laws and thus, the government is already seized of the matter. The petitioners are also at liberty to give their submissions/suggestions to the Ministry," the affidavit was quoted as saying by Hindustan Times.
It states that views were solicited from the Chief Ministers of all states, Chief Justices of India as well as academics and law scholars amongst many others although a timeframe was not submitted.
The new petitions filed against Section 375 only make "piecemeal changes" to the law whilst the government was seeking for broader reform in the criminal laws. The government further cited the 172nd report of the Law Commission of India on "Review of Rape Laws" in March 2000 that said it would not recommend deletion of the exception clause in Section 375 "since that may amount to excessive interference with the marital relationship"the Hindustan Times report said. The difficulty of obtaining evidence in such cases was also specified.
However, no references were made to the Justice Verma Commission which was set up in 2012 following the brutal Delhi Gang-rape incident that left a paramedical student dead. The Commission had recommended criminalising marital rape on the grounds that marriage was not considered automatic consent to sexual acts.
A bench of justices Rajiv Shakdher and C Hari Shankar is currently hearing final arguments in the bunch of PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, and two individuals, who have sought removal of the exception to Section 375, saying that it discriminated against married women who were sexually assaulted by their husbands.
On his part, senior advocate Rajshekhar Rao, who has been appointed as amicus curiae to assist the court, has argued in favour of doing away with the exception in Section 375 to make marital rape an offence.