The Centre on Thursday told the Delhi High Court that it was considering a constructive approach to the issue of criminalising marital rape and has sought suggestions from state governments, the Chief Justice of India, MPs and others on comprehensive amendments to the criminal law.
"The government has already undertaken a comprehensive exercise to make amendments in the criminal laws and thus Government is already seized of the matter," said the Ministry of Home Affairs in an additional affidavit before the court.
The Delhi High Court was hearing a batch of petitions challenging 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, provided the wife is above 15 years of age.
The division bench comprising Justice Rajiv Shakdher suggested that he didn't understand why we continue to "walk on eggshells" regarding this issue, as the relationship of a husband and wife was not relevant to whether a sexual act amounted to rape – consent was the crux of the matter.
However, Justice Hari Shankar suggested that the court would have to consider that by removing the exception, it was effectively making a specific criminal offence, that is, rape out of something which was not legally considered rape before.
He also contested the argument made by the Delhi Government on Tuesday that there are other legal remedies available to a married woman to deal with non-consensual sex, including a criminal case for cruelty under Section 498A of the IPC and under the Domestic Violence Act.
"It is a very very serious thing we are doing. We must be conscious of the seriousness of what we are doing and not undermine it by just making our arguments more on showing the angst and what is the plight of ladies in such situations. We must see the legal part of it too seriously and we have to do it within the well defined parameters in which a statutory provision can be declared unconstitutional," said Justice Shankar.
Justice Shakdher also pointed out that the rape laws grant no exemption in case of forced intercourse with a sex worker who chooses to withdraw consent at a belated stage, wondering why then should a wife be "less empowered."
Further hearing in the case will continue today (January 14).