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Asking the Delhi High Court to defer a hearing on the case challenging the constitutionality of the marital rape exception in the Indian Penal Code (IPC), the Centre has submitted that, "We are entering someone's bedroom (by seeking a decision on marital rape exception)," therefore the question needs to be decided after "a meaningful consultative process" only. 

Solicitor General (SG) Tushar Mehta appearing for the Centre clarified that while "it is not the Government's stand that the exception should go or stay," the Court can only be "assisted after a consultative process."

Further, reverting to counsel for one of the petitioners, Sr. Adv. Colin Gonsalves' submission regarding the alleged stand of the government on the issue as discerned from an affidavit, Mehta submitted, "I don't know what Ms. Arora (on whose name the affidavit is signed) is referring to."

The bench enquired of Mehta as to whether the said Ms. Arora works for the government. Mehta responded in the affirmative, but went on to state that "if anything is filed by anyone, it does not become the Central Government's stance."

He went on to assure the Court that while the "Government is committed to maintain protect the dignity and liberty of women," the Government has to take a stand only after consulting all stakeholders involved as it is "dealing with a larger issue here."

He argued, "Provisions of S. 375 IPC need a meaningful consultative process," and pointed out that some of the parties in the present proceedings before Delhi High Court "are not even affected parties."

Highlighting the importance of having various states' say in the matter, he said, "No state government is here," and that as "the matter is waiting since 2015, no prejudice will be caused (if it is deferred as) every state has some suggestion to make."

Responding to some of the parties' submissions regarding international treaties on the marital rape law, the SG submitted that, "Merely taking some treaty from somewhere will not meet ends of justice."

Sr. Adv. Colin Gonsalves appearing for petitioner Khushboo Saifi, on the other hand, referred to a document stating that, it is "not in conformity with Hindu religion and traditions, to say that consent is required to have sexual relations with one's own wife," and with highlighted India's stand in the Fourth World Women Conference stating that while India "was not unhappy with the proposal of marital rape but (it had) expressed reservations."

He further relied on various studies and reports and argued that it is extremely "important for India to take up the issue and take action on the same" with nearly "62% women (in a study) agreeing that men expect their wife/partner to agree when they want to have sex."

Gonsalves then cited figures of marital rape from across the country basis a study and pointed out that despite 6 years having passed, "the Union has not taken a stand on the issue, says the matter is "not urgent"."

On the National Crime Record Bureau (NCRB) data showing marital rape is a significant crime in the country, the bench stated that the data "doesn't specifically refer to rape by husband," on which Gonsalves said that that is because "marital rape is not a crime yet."

The High Court once again urged the Centre to take a stand on the matter, with Justice Shakdher telling the SG, "The central government has to take a decision. This is a matter where we want to hear you. It doesn't gel with us if we keep the matter pending. You're under instruction, I understand. It's not easy doing a solicitor's job."

However, it added upon Adv. Karuna Nundy's submissions that the 2022 and 2017 submissions of the government on its affidavits are different, that, "Let's be a little fair to SG, he said we are not standing for or against this provision. He says he needs sufficient time. It's not correct to catch on to this affidavit."

The matter has been deferred to February 21.

Cause Title: RIT Foundation vs Union of India