Delhi HC to continue hearing marital rape issue, appoints amicus

The court appointed senior advocate Raju Ramachandran as amicus curaie to assist it in the matter, considering its importance.

A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar listed the matter for further consideration on September 20, when it would hear it on a daily basis.

In pursuance to its earlier direction, advocate Gaurav Aggarwal, who appeared before the Supreme Court for petitioner NGO Independent Thought, apprised the court that the issues raised by petitioners in high court are different from those in the pleas before the apex court.

He said the issue in the apex court does not relate to the larger challenge, which is before the high court, on the constitutionality of an exception made in section 375 (rape) of IPC that does not consider sexual intercourse with a wife, not less than 15 years of age, as rape.

The apex court is hearing the issue relating to an exception in section 375 of IPC which says that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape.

After seeking clarification, the bench said, "there would be no impediment in hearing the case by this court."

Earlier, the bench had said it would be "highly improper" for it to continue hearing this matter after being told that the apex court was also hearing the marital rape issue.

Advocate Karuna Nandy, appearing for petitioner NGOs RIT Foundation and All India Democratic Women's Association, has said in the high court that they 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.

Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.

The high court had earlier agreed to examine the issue raised in PILs by the two NGOs, a man and a woman, who have sought striking down of 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 has 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, has 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.

Earlier, it had defended its legislation saying child marriages were taking place in India and the decision to retain a girl's minimum age as 15 years to marry was taken under the amended rape law to protect a couple against criminalisation of their sexual activity.