Gujarat HC To Review Law On Marital Rape, Examine If Exemption Violates Wife's Sexual Autonomy

The Gujarat High Court has sent notices to the state and Centre in a PIL challenging the constitutional validity of the exemption given to marital rape.

The PIL had argued that the exception given to marital rape is "manifestly arbitrary" and makes a woman's fundamental right to sexual autonomy subject to the whims of her husband".

Agencies

What the plea said

The petition is filed by Jaideep Verma, where he has challenged the exception given to men under section 375, which creates artificial distinctions on rights conferred on women to file a criminal complaint and also takes away their fundamental rights guaranteed in the Constitution.

Exception-2 to section 375 (rape) of IPC provides that sexual intercourse committed by a man on his wife is not 'rape,' even when he forces his wife against her will or without her consent. Consequently, the husband cannot be punished for rape.

"This violates right to live with dignity, right to refuse, right to reproductive choices, right to privacy etc. It also creates artificial distinction in that if the women can file complaint against husband in case of physical assault why it can't be considered an offence like in case of rape, which is more serious," states the PIL.

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He argued that the exception withdraws protection granted by the law to a woman against forcible sexual intercourse and the wife is forced to surrender her bodily integrity, sexual autonomy and her right to bodily privacy to the husband.

"Exception-2 makes a woman's fundamental right to sexual autonomy subject to the whims of her husband," said the PIL.

What the court observed

The court observed that ''...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''.

Marital rape has been a tricky topic in India.

In March 2016, the then Union minister for women and child development Maneka Gandhi had told the Parliament that it cannot be applied in the Indian context.

BCCL/ File

"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/ illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc," the minister had said.

A month later, in April the Union Home Ministry had told the Delhi High Court that according to the amended law, husbands have been protected from prosecution for any sexual acts with their wives who are above 15 years of age in view of the "social reality" of child marriages in India.

PTI

In April 2018, the Gujarat High Court had observed that sex with the wife without her consent, who is not below 18 years of age, is not rape.

Justice JB Pardiwala¡¯s court observed that the husband can¡¯t be prosecuted for the offence of rape under section 376 of IPC. According to the court, the offence was also not covered under section 375 of IPC as sexual intercourse by a man with his own adult wife (above 18 years) wouldn¡¯t be termed as rape.

In April 2019, former CJI Dipak Misra had said he doesn¡¯t think marital rape should be made an offence in India. ¡°There is no necessity to bring such kind of law. This is my personal view,¡± Misra said.

¡°It will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,¡± he said.

PTI

In March this year, the Supreme Court stayed the arrest of a man accused of rape by his former partner, asking "... however brutal the husband is... when two people (are) living as husband and wife... can sexual intercourse between them be called rape?"

The Bombay High Court had in August said that the man's acts couldn't be considered illegal even when he forces intercourse on his wife against her wishes.

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