The Delhi High Court on Monday said it would be “highly improper” on its part to hear pleas challenging the exception in law that protects a husband from being tried for the rape of his wife, if the similar case is pending before the Supreme Court.
A division bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar said if the matter is being heard by the Supreme Court, “we cannot overlap” the matter and asked the parties in the case to find out if the contentions of these petitions are similar to those being heard by the Supreme Court.
The bench sought presence of advocate Gaurav Aggarwal, petitioner for NGO Independent Thought before the Supreme Court to get clarity on the issue as it posted the matter for September 8.
The high court has been hearing petitions filed by NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim, challenging the exception to rape under Section 375 and Section 376B of the Indian Penal Code as unconstitutional.
The pleas challenge the Section 375, saying it does not consider sexual intercourse of a man with his wife as rape. Section 375, which defines “rape”, also contains the exception provision which states that the rape law would not apply to assault or sexual intercourse by a husband with his wife over 15 years of age. Section 376B deals with sexual intercourse by a man with his wife during separation.
A men’s right group — Men Welfare Trust — has also approached the high court contending that the existing laws were “very much capable of dealing with the cases of sexual abuse of women” and there is no need to either bring a fresh law to deal with it nor is there a requirement to withdraw the protection granted to husbands under Section 375 of the IPC.
“The sexual abuse in a domestic relationship should not be termed as rape,” the men’s plea has said.
The Central government has told the court that criminalizing marital rape may destabilize the institution of marriage apart from being an easy tool for harassing husbands.
In an affidavit, the government said that there can be no lasting evidence in case of sexual acts between a man and his own wife.
“It has to be ensured adequately that marital rape does not become a phenomenon which may destabilise the institution of marriage apart from being an easy tool for harassing the husbands,” it said.