The Gujarat High Court said the time has come for the court to consider whether the exception given to marital rape is “apparently arbitrary”, and state on a PIL challenging the constitutional validity of such exemptions. and issued notices to the Central Governments. The court, while issuing the returnable notice on January 19, observed that “…it is high time that a writ court exercise to consider whether Exception-2 to section 375 of the IPC can be clearly defined.” can be said to be arbitrary and it makes a woman a fundamental right. Sexual autonomy subject to the will of her husband”.
Exception-2 to section 375 (rape) of IPC provides that sexual intercourse by a man on his wife is not ‘rape’ even if he forces his wife against her will or without her consent. Consequently, the husband cannot be punished for rape.
Petitioner Jaideep Verma challenged its constitutional validity on the ground that it was “arbitrary, unreasonable, unconstitutional, violative of Articles 14, 15, 19 and 21 of the Constitution of India, violates the inherent human rights recognized by the Constitution of India and Violation of constitutional morality and principles”.
Observing that an important issue has been raised in the petition, the bench informed the counsel for the petitioner that it intends to pass an order on how the court has proposed to deal with the contentious subject of Exception 2 to Section 375.
The petitioner argued that the exception takes away the protection given by law to a woman against forced intercourse and the wife is compelled to surrender her bodily integrity, sexual autonomy and the right of bodily privacy to the husband. “Exception-2 makes a woman’s fundamental right to sexual autonomy subject to the will of her husband,” the PIL said.
It said, thus, the law wholly excludes the offense of rape by the husband of his pregnant wife, or by a wife unable to give her consent, suffering mental or physical incapacitation, and by a husband causing grievous bodily harm. and repeated rape by the husband of the wife
(with inputs from PTI)
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