Gujarat High Court on Tuesday issued notice to Centre and State government over a plea challenging the constitutional validity of Exception 2 to the Section 375 of the Indian Penal Code.
Section 375 of the Indian Penal Code criminalises rape. However, Exception 2 to the Section 375 exempts a man who rapes his wife if she is above the age of fifteen years.
“It is high time that a writ court undertakes the exercise of considering, whether the Exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman’s fundamental right to sexual autonomy subject to the whims of her husband. There are many other larger issues raised in the present litigation which needs to be considered in detailed,” noted Justice J.B.Pardiwala and Justice Niral.R.Mehta.
The writ petition had challenged the constitutionality of the Exception 2 to the Section 375 of IPC for being arbitrary, unreasonable, and violative of Article 14, Article 15, Article 19, and Article 21 of the Constitution of India.
The petitioner further contended, “Exemption 2 makes the woman’s fundamental right to bodily privacy and sexual autonomy subject to the whims of her husband.”
“The exception is based on the Doctrine of Coverture whereunder upon marriage, the woman loses her separate existence and is regarded as the property of her husband. Aforesaid doctrine is incompatible with the Indian Constitution which treats women as equal to men and considers “marriage as an association of equals and not as a fiefdom of a husband over his wife,” the petition stated.
The petitioner further added, “The doctrine behind Exception 2 is incompatible with our Constitutional morality and is violative of natural inherent rights of the wife including the right to live with dignity, the right to personal liberty, the right to sexual autonomy and bodily integrity, the right to reproductive choices, the right to privacy and even the freedom of speech and expression, rights which are guaranteed and protected by the Constitution as fundamental rights under Articles 14, 15, 19, 21, etc. and recognised in Supreme Court judgments.”
In the petition, it was mentioned that the exception granted to marital rape has created an artificial distinction between victims- wife and a woman who is not a wife. While the legal protection against rape is available to women, the married woman does not enjoy this protection against her husband.
The petition added that while husband is liable to be punished for sodomy on his wife, he cannot be punished for rape.
The petitioner went on to add that Section creates an arbitrary distinction between married and separated women; women above the age of 15 years and is thus arbitrary and unconstitutional.
The notice has been issued to the Attorney General of India and the State of Gujarat.
In August 2021, Kerala High Court had held that marital rape can be accepted as a valid ground to grant divorce by recognising it as cruelty.
“Treating a wife’s body as something that is owed to the husband and committing sexual acts against her will is nothing but marital rape. “Right to respect for his or her physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy,” observed Kerala High Court.