ADV DEEPAK - BENCH OF DELHI HC DOES NOT HAVE THE JURISDICTION TO CRIMINALIZE MARITAL RAPE

Advocate J Sai Deepak, appearing for a group called Men Welfare Trust (MWT), told the Delhi High Court that the issue of marital rape should be kept outside the courts. 

"When the legislature does not act, I believe that the judiciary should make its mind clear concerning the pace at which it should move. But what should be the end outcome for that policy is not something that can be decided by a court even if it is a constitutional court exercising powers under Article 226 of the Constitution. This power is nowhere close to the power of the Apex Court under Article 141."

Adv Deepak argued before the bench in opposition to a batch of petitions seeking the criminalization of marital rape. He argued before the bench of Justices Rajiv Shakdher and C Hari Shankar that if the effect of courts removing a provision is to decriminalize something like Section 377, then that is a different situation. However, striking down Exception 2 of Section 375 broadens the capacity of the existing offence, thereby creating a new offence when the legislature has taken a position to the contrary. 

He further submitted that even if the Exception were to be assumed to be unconstitutional, the Court should respect the doctrine of separation of powers. Section 375, 376B, 376C, and 498A of the Indian Penal Code showed that the legislature had identified four situations where a woman's bodily integrity is challenged. Therefore, there is an intelligible differential in the way in which these offenses are treated. 

Counsel for the trust concluded by saying, "We recognize there are more genders. Rape is not related to one gender."

The Court will continue the hearing on the matter on Friday. 

Author: Papiha Ghoshal