[BREAKING] Gujarat High Court to decide Constitutionality of IPC exemption under Section 375 to marital rape

In a significant development, the Gujarat High Court is set to examine the Constitutional validity of exception 2 to Section 375 of the Indian Penal Code which exempts marital rape from the purview of rape [Jaideep Bhanushankar Verma vs. Union of India]..A Bench of Justices JB Pardiwala and Niral R Mehta observed that it is high 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."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 Court said.It, therefore, issued notice to the Attorney General for India, State of Gujarat and Additional Solicitor General Devang Vyas. "Since the constitutional validity of Exception 2 to Section 375 of the IPC has been questioned, let notice be issued to the learned Attorney General of India through the Secretary, Ministry of Law and Justice, New Delhi," the Court directed.The order was passed on a public interest litigation (PIL) petition filed by one Jaideep Bhanushankar Verma challenging the Constitutional validity of exception 2 to Section 375. The petitioner contended that the provision is arbitrary, unreasonable, unconstitutional, violative of Articles 14, 15, 19, 21 and inherent human rights of the Constitution and constitutional morality. It also prayed for directions to the Gujarat Police to lodge FIRs in cases of marital rape. Advocate Salil M Thakore appearing for the petitioner, submitted that by virtue of the exception to Section 375 (rape) of the IPC, protections granted by law to a woman against forcible sexual intercourse is withdrawn and the wife forcibly surrenders her bodily integrity, sexual autonomy (the right to say no) and bodily privacy. It thus makes a woman’s fundamental right to sexual autonomy subject to the husband's whims, as it treats women as subordinates of their husbands, he argued. Thakore further contended that the said exception is anachronistic to the Constitution, offensive to human dignity, manifestly arbitrary and incompatible with our constitutional morality by violating fundamental and inalienable rights which are otherwise inherent as recognised by the top court. Thakore argued that the following rights are violated by the exception: right to live with dignity, right to fair, dignified and humane treatment, right to personal liberty, right to sexual autonomy and bodily integrity, right to reproductive choices, right to privacy, right to not be subjected to confinement, right to freedom of speech and expression, and the right to protection against inhuman, violent and dangerous acts.The counsel submitted that the exception effectively exempts the husband from punishment for even the more aggravated forms of rape otherwise punishable under Sections 376(2) and Section 376A (rape by public officials or separated husband). These exemptions against punishment thus include the acts of rape by a husband of his pregnant wife, a wife incapable of consenting or suffering from any disability, causing the wife bodily harm and endangering her life through it, and repeated rapes, it was argued. Thakore submitted that the exception seems to be based on the outdated and regressive colonial common law principle known as the doctrine of coverture. As per the same, a married woman had no legal rights or autonomy of her own as these got subsumed by those of the husband. It was mentioned in the Supreme Court judgment outlawing adulterty, Joseph Shine vs. Union of India.It was submitted that coverture is incompatible with the Indian Constitution which guarantees equality of man and woman. The High Court in its order stated that the present PIL does not seem to be "based on any factual matrix."It further emphasised that the enactment of laws is a decision of legislative policy and legislative policy decision should not be interfered with lightly by by courts by ordering parliament to make amendments. Even so, it ruled that is high time a writ court adjudicated in detail on the larger issues raised in the petition and issued notice to the Central government and State.The Court treated the matter as part-heard and listed it for further consideration on January 19, 2022..[Read order]