Gujarat High Court to issue constitutionality of IPC dispensation in the process of Section 375 to marital rape

A Bench of Justices JB Pardiwala and Niral R Mehta noticed that it is very peak time a writ court undertakes the exercise of considering whether marital rape makes a woman’s fundamental right to sexual autonomy subject to the husband's whims. The bench said "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". The bench further said, “By marrying, no woman consents to her husband committing forcible sexual intercourse on her. The solemnisation of marriage implies at best an understanding that the couple would have a consensual sexual relationship as part of their married life, not an understanding that the husband can force the wife into the act at his whim and against her consent.” 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. Verma has stated that the sub section 2 of 375 violates the sexual autonomy of women, where has been defined that sexual intercourse or sexual act by a man with his wife, with the wife not being under 15 year of age, is not rape. The Writ Petition further argued that 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. The Petition argued that 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 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," the petition states. In the light of these submissions, the High Court in its order notes that it is high time a writ court undertakes the exercise of considering whether 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. The order has directed that notice be issued to the Attorney General of India and the State of Gujarat. In the opinion of the court, the idea that marriage snatches away a woman’s right to sexual autonomy is “without any basis and incompatible with our constitutional morality. To say that the solemnisation of marriage amounts to conferring on the husband the right to rape is a blot on the institution of marriage itself”.