Gujarat HC To Consider If Exception To Marital Rape From Section 375 IPC Violates Wife's Fundamental Right To Sexual Autonomy

The Writ Petition had 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.

The Writ Petition further argued that the exception 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 argued 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 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 in its order notes 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 has directed that notice be issued to the Attorney General of India and the State of Gujarat.