Updated: January 21, 2022 10:30:26 am
Terming exception 2 of IPC 375 a colonial legacy and an exemption from criminal prosecution, Senior Advocate Rebecca John, an amicus curiae in the case seeking criminalisation of marital rape, on Thursday contended before Delhi High Court that the court will be upholding the bodily integrity of women by striking it down and putting the people to notice that a marital partner’s non-consent must be respected.
Submitting that if the consequence of the exception is that a married woman can be subjected to sexual intercourse without her consent, John argued that then it must be viewed as “an instrument of oppression”.
The division bench of Justice Rajiv Shakdher and Justice C Hari Shankar is hearing the petitions challenging Exception 2 in IPC Section 375 that protects men, who have forced non-consensual sexual intercourse with their wives, from criminal prosecution under Section 376 IPC.
Stating that the challenge to the exception does not seek to punish every man in a marital relationship but only an act where the wife’s ‘no’ has been disregarded, John contended that if the court holds the same to be unconstitutional, it will not be creating a new offence as the same already exists, but only a class of individuals who at present enjoy legal immunity from the prosecution will now lose it.
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“What is written in Exception 2, which has been given to us from a doctrine, propounded 200 years by our colonial masters does not reflect either the Indian man or the Indian woman, certainly not the Indian marriage. The colonial masters have done away with it. We continue to hang on to that legacy,” said John.
She submitted that the expectation of sex or a meaningful conjugal relation within a marriage is fair and that there may even be a unilateral expectation for sex in a given case. “If that expectation is not fulfilled, then the spouse has every right to resort to civil remedies. However, when the expectation within a marriage becomes a physical act based on coercion and force and is non-consensual, causing harm or injury… then that sexual act must become an offence.”
Stating that the exception is in the nature of an immunity, John stressed that the issue needs a serious judicial intervention as the question before court does not pertain to trivial cases but a serious case like of forceful sexual intercourse. While referring to the consequences, John asked whether the court will allow a husband, who is suffering from a venereal disease, to claim the exception and also permit it in a case where a woman is ill and a sexual relation will have detrimental affect on her health.
“The daily dose of forced sex has in fact a detrimental affect on her health. Can it still be said that the exception is absolute because it is not rape,” asked the senior counsel, adding that the court needs to look at the consequences of giving the marital partner such immunity.
In response to a question from Justice Shankar on which freedom is curtailed by Exception 2, John responded: “The freedom to say no.” She said the consequence of the exception is that the man in a situation where he is otherwise raping his wife will not be punished only because he is married and the second part (will, consent) of IPC 375 will not be given effect to.
While referring to the Supreme Court judgment which decriminalised adultery, John submitted that IPC 497 only allowed the husband to prosecute the man with whom his wife had sex and the wife could not prosecute the husband for his act of adutltery.
“Exception 2 to 375 represents same antiquated notion of marriage between unequals and the judgment of Supreme Court in Joseph Shine articulates what constitutes a modern marriage when it held that marriage as a social institution has undergone change, propelled by access to education and by economic and social progress, woman have greater freedom and law must reflect their status as equals in a marriage entitled to constitutional guarantees of privacy and dignity,” argued John.
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