Gujarat HC Admits PIL Challenging Marital Rape Exception In Section 375 IPC; Senior Judge In The Bench Had Held In 2018 That Marital Rape Should Be A Crime

A Division Bench of the Gujarat High Court consisting of Justice JB Pardiwala and Justice Niral Mehta has admitted a PIL challenging the constitutional validity of Exception-2 to Section 375 of the Indian Penal Code on the grounds of being arbitrary, unreasonable, unconstitutional, violative of Articles 14, 15, 19 and 21 of the Constitution of India.

Earlier, in the year 2018, Justice JB Pardiwala as a single judge had held in a Judgment that, "Marital rape ought to be a crime and not a concept." The Judge had also held that, "It has long been time to jettison the notion of 'implied consent' in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status." The said Judgment of Justice Pardiwala is quoted in extenso in the present order.

In the order passed on Tuesday, the Division Bench has held that, "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. There are many other larger issues raised in the present litigation which needs to be considered in details."

The Bench issued notices to the State of Gujarat and the Attorney General of India and asked the Counsel for the Petitioner to serve a copy of the proceedings to Mr. Devang Vyas, Additional Solicitor General of India.

The Bench has directed that case be treated as part-heard, while issuing notice returnable on January 19.

The PIL is filed by Jaideep Verma, a practising advocate and a part-time lecturer.

The Petitioner has inter alia sought a direction to the police machinery of the State of Gujarat to register a First Information Report under Section 154 of the Code of Criminal Procedure, 1973 and conduct an investigation whenever a complaint is made that a man has committed or attempted to commit any of the acts mentioned in Section 375, 376 or 376A of the IPC on his wife under the relevant provision of law.

Appearing for Petitioner, Advocate Salil Thakore submitted that Exception-2 of Section 375 violates the following fundamental and inalienable rights and which have been recognized by the Supreme Court of India:-

"(a) The right to live with dignity and the right to fair, dignified and humane treatment, (b) The right to personal liberty, (c) The right to sexual autonomy i.e. the right to decide whether and when to engage in sexual activity – the right to refuse to engage in sexual activity and the right to bodily integrity,(d) The right to reproductive choices (including the right to not procreate) (because the act subjects the woman to the risk of pregnancy against her will) (e) The right to privacy, (f) The right to not be subjected to confinement (which flows from the right to free movement), (g) The right to freedom of speech and expression, expression being a wide term including various forms of expression (h) The right to the protection of the law against inhuman, violent and dangerous acts."

The Court then summarized arguments by Thakore thus:-

"(i) Exception-2 to Section 375 exempts the husband from the offence even when he forces his wife to indulge in sexual acts with a third person (ii) Exception-2 to Section 375 results in various anomalies, is grossly irrational and has no determining princple. (iii) Forcible non-vaginal intercourse committed by a man on his wife is punishable but forcible vaginal intercourse committed by a man on his wife is exempted. (iv) Forcible non-vaginal intercourse committed by a man on his wife is punishable but aggravated forms thereof are not subjected to higher punishment (though such aggravated acts are otherwise subjected to higher punishment. (v) The half-protection afforded to the separated wife under Section 376B. (vi) The Right to Sexual Autonomy – an inherent human right that flows from the fundamental rights to personal liberty, dignity privacy and bodily integrity recognized by the Supreme Court of India. (vii) Rape, a dehumanising act that causes emotional and psychological harm to the victim."

Thakore then explained that Exception 2 to Section 375 has existed in the Indian Penal Code since the time of its enactment by the British in 1860. Exception 2 is based on an archaic, outdated and extremely regressive principle whereunder the married woman is treated as subordinate to and bound by the dictates of the husband, where she is treated as a person devoid of basic human rights, her wishes and autonomy and as a person without a legal existence of her own and as a property of her husband, contended the counsel for the Petitioner.

He submitted that, "The 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 has not been accepted in India. In India, a married woman has an independent existence and has her own legal rights. She is not subordinate to the husband in any respect whatsoever. Unlike the woman of the times when the law of coverture applied, the woman under the Indian Constitution is free to enter into contracts, free to work or carry on any business or profession, free to buy property, free to vote and stand for elections, etc. whether she is married or unmarried. The wife is not treated as her husband's chattel. Under the Indian Constitution, the woman, whether married or not has autonomy over herself and her choices, decisions and actions."

The Court "confronted" the Petitioner with a Judgment of the Supreme Court in the matter of Guruvayoor Devaswom Managing Committee and another vs. C.K.Rajan and others, which holds that, ordinarily, the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or a statutory rule, only to hold that, "However, 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. There are any other larger issues raised in the present litigation which needs to be considered in details."

Case : Jaideep Bhanushankar Verma Vs. Union of India

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