The Gujarat high court agreed to consider the constitutional validity of the exception accorded to marital rape in the Indian Penal Code (IPC) and issued notices to the Union and state governments on a public interest litigation challenging the controversial provision. Exception 2 to Section 375 (rape) of IPC says that sexual intercourse or sexual acts by a man with his wife is not “rape”.
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 Section 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. “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.
“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,” observed a division bench of justices JB Pardiwala and Niral R Mehta.