The 'Exception' To Section 375 of IPC: Can A Married Woman Lose Her Right To Say No, Delhi HC

NEW DELHI: The Delhi High Court on Wednesday heard a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offense of rape, provided the wife is above 15 years of age. The petitions against marital rape were filed by NGOs RIT Foundation, All India Democratic Women's Association, and two individuals.

Section 375 in The Indian Penal Code

Section 375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Senior Advocate Rajshekhar Rao, appearing as amicus curiae in the matter, told a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar that,"... a woman is better off, as a matter of law, when she is assaulted by a stranger. But when her loved one assaults her, the law says, she is not entitled to call that act rape."

Rao added that in the context of rape, while the Courts have repeatedly said that it dehumanizes the very existence of a woman, he argued that the question which needs to be asked is whether the Court should sit by and watch a provision which aids in the possibility of a woman being dehumanised every day.He added, "No amount of telling a woman that she can prosecute the husband under 10 other provisions of law, can undo the inability that she faces because she is violated by the person who is supposed to be her companion, her husband, her partner, a person who is in the fiduciary capacity."

Yesterday, the Delhi Government submitted that the exception to Section 375 of IPC pertaining to non-criminalization of marital rape does not leave a married woman remediless pursuant to forced sexual intercourse by her husband. It also submitted that the exception does not compel a wife to have sexual intercourse with the husband and that the remedy of divorce, including other remedies under the criminal law, is available to her in such situations.

Earlier, two of the petitioners namely RIT Foundation and All India Democratic Women's Association (AIDWA) told the Court that the marital rape exception provided under Section 375 of Indian Penal Code violates a woman's right to dignity, personal and sexual autonomy and her right to self expression enshrined under the Constitution of India. (Source: Live Law) 

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