Gujarat HC Issues Notice To Centre And State In PIL On Marital Rape

Gujarat High Court on marital rape: The Gujarat High Court while hearing a petition on the constitutional nature of Exception 2 in Section 375 of the Indian Penal Code, which exempts the man who rapes his wife if she is not under the age of 15 years old, issued a notice for the response of the Centre and state government by January 19, 2022.

The bench who heard the plea consisted of Justices JB Pardiwala and Niral R Mehta. The Public Interest Litigation (PIL) was filed by Salil Thakore.

The petitioner Thakore in the plea stated that this exception is based on the Doctrine of Converture which states that a woman after marriage loses her individual identity and is regarded as a property of the husband. Thakore further states that in a constitution like India's where women and men are taken as equals, this exception is a blot and needs to be changed.

Suggested Reading: “Can You Call It Rape?”: Supreme Court On Marital Rape

In response to this, the court in the order stated, "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 a subject to the whims of her husband."

 "By marrying, no woman consents to her husband committing forcibly sexual intercourse on her," said the court.

The petitioner challenged Exception-2 as a violation of Articles 14, 15, 19 and 21 of the Constitution of India, which states the right to live with dignity, right to personal liberty, right to sexual autonomy, right to reproductive choices, right to privacy, amongst others.

In August 2021, even the Kerala High Court in a judgement upheld that if a husband's sexual behaviours disregard the autonomy of the wife then it can be counted as marital rape. On this grounds, the court validated the divorce of a couple. The judgement was made by Justices A Muhamed Mustaque and Kauser Edappagath, who dismissed the husband's plea against the High Court's decision to uphold the divorce on the grounds of harassment. According to the case report, the husband had coerced the wife into having unnatural sex as well as other sexual activities in front of their daughter.

The Kerala HC noted that marital rape occurs when the husband believes that the wife owes him her body. Read more here.