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Gujarat High Court to decide Constitutionality of IPC exemption under Section 375 to marital rape

Socio Legal Corp

By – Neha Virmani

The division bench of High court of Gujarat comprising of Justice J.B Pardiwala and Niral R Mehta heard a challenge writ plea where the petitioner raised the issue of Constitutional validity of Exception 2 of Section 375 which deals with “Rape of married girl under the age of 15.”

According to the contention raised by the petitioner in the writ petition, this exception provision under Section 375 of IPC is based on “Doctrine of Coverture” wherein the women tend to loss her separate identity after marriage and further considered to go according to the whims of her husband and thus, regarded as property of Husband.

Further, in the plea the petition raised the contention that Exception 2 of Section 375 of IPC is not only arbitrary in nature but also unconstitutional as it is violating the rights of women under Article 14, 21, 19 (golden triangle) and 15 of the constitution as this section is conjecturing the privacy and sexual autonomy of married women as property of husband based on his whims.

Thereon, the petition submitted that “The doctrine of Coverture” over which Exception 2 of Section 375 of IPC is based is incompatible with the morality and legality of constitution as it taking over the nature inherited right of women including her “right to dignity” and “right to sexual autonomy.”

Added further, the petitioner raised contention on the legal protection given under Exception to marital rape under IPC and submitted that the artificial distinction between victims of marital rape that is, married, separated and women below 15 years of age is in itself arbitrary and thus, unconstitutional.

Thus, after hearing all the contentions presented by the petition the bench stated that “it’s high time that “the court must undertake such issue as it is manifestly arbitrary and subjected to whims of her husband” thus, through its order directed the Attorney General of India & state of Gujarat.              

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