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Updated: Nov 14, 2021

Author: Khushi Yadav, I Year of B.A.,LL.B from Fairfield Institute of Management and Technology, affiliated to Guru Gobind Singh Indraprastha University.

Section 375 of the Indian Penal Code (IPC) defines rape as nonconsensual sexual intercourse with a woman against her free will, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age. However, this law takes a 180 degree turn when it comes to married women. Exception 2 to Section 375 decriminalizes a man for having coerced sexual intercourse with his wife over 15 years of age and exempts him from any kind of prosecution.

In India, at present, 49.5% of the women are married, out of which every 1 in 3 women has experienced physical or sexual violence. India is a patriarchal society. As per orthodox beliefs, women lose their individuality after marriage and are considered as the property of their husbands. Marriage in India is considered a sacred union of two individuals for the sole sake of procreation of children which leaves no ground for any instances of rape. Exception 2 to Section 375 overpowers the husband over his wife and provides him with a free license to harm the bodily integrity of his wife. However, this orthodox belief must not override the rational thinking of the common man.

When the Indian Penal Code was framed by the Britishers in the 1860s, men and women were not considered equal individuals. Women in Victorian society had one main role in life, which was to marry and take part in their husbands’ interests and business. Men were given a superior status in comparison to women. But times have changed and this is an outdated concept. As of today, men and women, both share equal status in society. Women today are self-sufficient and are not considered as bond-slaves to their husbands.

Article 14 of the Constitution of India reads as “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." However, Exception 2 to Section 375 of the IPC infringes this fundamental right. It creates two different classes of women based on their marital status. There are ample options for a sexually harassed woman but no legal remedy for a woman who is raped by her husband. This arbitrary immunity provided to men is nauseating. Article 21 states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Further, the article includes rights to health, privacy, dignity, safe living conditions, and a safe environment, among others. One's right to dignity is brutally squashed under the weight load of this heinous Exception.

There have been a plethora of verdicts by various courts that prove that the judiciary recognizes the sexual right of all women, regardless of marital status. For example, in Budhan Choudhary v. The State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test. In The State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. In Suchita Srivastava v. Chandigarh Administration, the Court noted that reproductive rights were a dimension of a woman’s human rights, and as such her rights to “privacy, dignity and bodily integrity” should be respected. In Justice K.S. Puttaswamy v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right.

In the case, Independent Thoughts Vs. Union of India, the Court held that the marital rape exception should only cover cases where the woman is 18 years or older and favored to strike down the Exception 2 to Section 375 of the IPC on the grounds that it is arbitrary, capricious, whimsical, and violative of a girl child's rights. The esteemed Court gave a laudatory verdict but the prima facie questions that arise here are, "Why the age limit?, Shouldn't Exception 2 be completely struck down?"

In a country where female energy is identified as shakti which is responsible for all creation, as mothers are responsible for birth, her very right to live with integrity is violated. This Exception is the epitome of the most disgusting and irrelevant Victorian laws that exist till date. The fact that it is rape does not change because of the culprit's identity. India needs to join hands with the other 150 countries and criminalize this despotic law. It is high time that we look beyond this implausible concept and meticulously amend such laws for the sake of a healthy and safe environment for women and a better and promising future.


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