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[Plea Against Exception 2 To S. 375 IPC] Gujarat High Court To 'Wait' For Delhi HC's Verdict In 'Marital Rape' Matter

Sparsh Upadhyay
12 March 2022 7:52 AM GMT
[Plea Against Exception 2 To S. 375 IPC] Gujarat High Court To Wait For Delhi HCs Verdict In Marital Rape Matter
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Before hearing the PIL challenging the constitutionality of Exception 2 to Section 375 of the Indian Penal Code pending before it any further, the Gujarat High Court has decided to wait for Delhi High Court Judgment on this issue.Essentially, the Delhi High Court is expected to deliver its verdict in a batch of petitions challenging the exception to Section 375 of the Indian Penal Code,...

Before hearing the PIL challenging the constitutionality of Exception 2 to Section 375 of the Indian Penal Code pending before it any further, the Gujarat High Court has decided to wait for Delhi High Court Judgment on this issue.

Essentially, the Delhi High Court is expected to deliver its verdict in a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape. It may be noted that a bench of Justice Rajiv Shakdher and Justice C. Hari Shankar of Delhi HC had reserved the verdict in the matter last month after hearing the matter for several days.

It may be noted that exception 2 to Section 375 of IPC exempts forceful sexual intercourse by a man with his own wife from the offence of rape and hearing the PIL challenging the constitutionality of Exception 2 to Section 375 of the Indian Penal Code, the Gujarat High Court had, in December 2021, issued a notice in this plea.

The Writ Petition before the Gujarat HC has challenged the constitutionality of Exception 2 to Section 375 of the Indian Penal Code for being arbitrary, unreasonable and violative of Articles 14, 15, 19, and 21 of the Constitution of India.

The Petitioner has also argued that Exemption 2 makes the woman's fundamental right to bodily privacy and sexual autonomy subject to the whims of her husband.

Now, on March 11, when the matter came up for hearing before the bench of Justice J. B.Pardiwala and Justice Niral R. Mehta, it said that it would wait for the Delhi High Court's Judgment on the issue in question and it wouldn't proceed with the instant PIL. Further, the Bench also noted that a similar issue is already pending before the bench of Chief Justice and directed the instant PIL to be tagged with that murder.

Meanwhile, an octogenarian from Vadodara, Rajanikant Kataria appeared through his lawyer before the Court by way of filing an application opposing the criminalization of Marital rape, the Court took the application on record.

The background of the PIL plea before the Gujarat HC

The Writ Petition argues that exception 2 of Section 375 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 argues 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.

It was submitted 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 Petitioner also contended that while the husband is liable to be punished for sodomy on his wife, he cannot be punished for rape. The Petition further submits that the Section creates an arbitrary distinction between married and separated women; women above the age of 15 years and is thus arbitrary and unconstitutional.

In the light of these submissions, the High Court had, in its December 2021 order, noted 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 had also directed that notice be issued to the Attorney General of India and the State of Gujarat.

Case Name: Jaideep Bhanushankar Verma vs Union of India

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