- Independent Thought v. Union of India;
- Justice K.S. Puttuswamy (Retd.) v. Union of India;
- Govind v. State of M.P;
- Kharak Singh v. State of U.P
The term Rape
was 1st time introduced and clearly defined in the Indian
Penal Code, 1860 made after the 1st law commissions efforts under Lord Macaulay.
Section 375 of the IPC makes it punishable for a man to have sex with a woman if
it was done against her will or without her consent. It is also a rape if the
sexual intercourse was done when her consent was obtained but putting her or any
other person in whom she is interested, in fear of death or hurt.
Section 376 provides for seven years of jail term to life imprisonment for rape.
Sex with a girl under 18 years, done with or without her consent is considered a
rape. But surprisingly, under Exception 2 to section 375, sexual acts or
intercourse by a man with his wife (above 15 years of age) without her consent
is not considered a rape. This exception is popularly known as the Marital Rape
Independent Thought v. Union of India
, 2013 Judgement of Supreme Court:
In 2013, an organization that works for the rights of women and child,
Independent thought challenged the exception 2 to section 375 of IPC before the
Issue in this case was:
The Supreme Court's findings:
- The legality and constitutionality of exception 2 to sec. 375 of IPC.
Exception 2 created an artificial distinction between a married' girl and an
unmarried' girl. This arbitrary classification between minor girls on the basis
of their marital status violates Article 14.
The parliament has powers to make laws on welfare of child and women under
article 15(3). POCSO was such a legislation made under Article 15(3), therefore
POCSO laws have overriding effects on any other law. It was found that the POCSO
Act 2012, set the minimum age for consensual sex as 18 years. But exception 2 to
sec 375 was contrary to this. POCSO criminalized penetrative sexual assault with
children below 18 years but exception 2 did not criminalize it, (i.e. for
married girls above 15 years.)
So if there is an artificial distinction between rape of married girl and
aggravate penetrative sexual assault then it is violation of Article 15(3).
The exception 2 ignores those victims of forced or early marriage- to find any
recourse to criminal law against forced sexual intercourse by the husband. !
Thus this deprives the girl of her right to life, bodily integrity and dignity
under article 21. It also violates right to privacy as thr right of privacy has
recently been upheld by the Supreme Court in Justice K.S. Puttuswamy (Retd.)
v. Union of India
Also, this exception has no measures against trafficking of a girl child. This
was arbitrary and discriminatory in nature, hindering the best interest of a
Since exception 2 of section 375 of IPC violated Article 14, 15 and 21 of the
Indian constitution and puts a girl's physical and mental health in serious
jeopardy. Therefore it was read down by the Supreme Court of India in
Independent Thought v. Union of India, 2013.
Exception 2 to section 375 of IPC, would not apply to minors.
It now reads as follows: Sexual intercourse or sexual acts by a man with his
own wife, the wife not being under 18 years of age, is not rape.
Finally, girls below 15 years were safe from marital rape, but till today adult
married women are not.
Justice K.S. Puttuswamy (Retd.) v. Union of India
, (2017) AIR 2017 SC
The case, brought by retired High court Judge, Puttaswamy, challenged the
governments proposed scheme for a uniform biometrics based identity card which
would be mandatory for access to government services and benefits.
The government argued that the constitution did not grant specific protection
for the right to privacy. But the court reasoned that privacy is an incident of
fundamental freedom or liberty guaranteed under article 21 which provides that
no person shall be deprived of his life or personal liberty except according to
procedure established by law.
The government argued that constitution did not grant specific protection for
the right to privacy. They made reference to observations made in the case of
M.P.Sharma v Satish Chandra
and Kharak Singh v. Uttar Pradesh
The nine judge bench of the Supreme Court unanimously recognized that the
constitution guaranteed the right of privacy as an intrinsic part of the right
to life and personal liberty under article 21. The court overruled M.P. Sharma
and Kharak Singh case as they did not expressly recognized right to privacy.
It was highlighted that privacy included the right to make choices for oneself.
Privacy is a concomitant of dignity and every individual enjoys autonomy over
their most personal and intimate decisions.
The court highlighted that right includes autonomy over integrity (reproductive
rights), personal decisions (like, food choices), and protection of personal
information (e.g. privacy of health records) .
Right to abstain
from sexual intercourse
Right to abstain is a question of personal liberty under Article 21 of Indian
Constitution and a right to privacy.
The right to privacy is not expressly recognized as a fundamental right, it was
an essential ingredient of personal liberty under Article 21 of the Indian
In Independent thought vs. union of India, criminalizes unwilling sexual contact
with a wife between fifteen and eighteen years of age. In recent years courts
have begun to acknowledge a right to abstain from sexual intercourse.
In 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. It also said that non-consensual
sexual intercourse amounts to physical and sexual violence.
The right to make choices related to sexual activity with rights to personal
liberty, privacy, dignity, and bodily integrity under article 21 of Indian
Constitution was established in Suchita Srivastava v. Chandigarh
Govind v. State of M.P,
AIR (1975) SC 1378
Govind, an accused of a number of crimes was listed as a habitual criminal and
was subject to a number of surveillance by the Madhya Pradesh police under
regulation 855 and 865 of the Madhya Pradesh Police Regulations. There were
irregular visits to his homes to ensure that he does not indulge in any criminal
acts which are against public security.
He said that this was not in accordance with his right to privacy.
The court found that right to Privacy is not explicitly provided under the
constitution of India. It can only be implied from article 21, that's why it is
not an absolute right in its entirety. Therefore reasonable restrictions could
be imposed on a person's right to privacy.
Domiciliary visits were not regarded to be violative of the right to privacy as
these were reasonable in nature and had the objective to secure public interest.
A right to privacy could be overshadowed by a law that had reasonable grounds
and for benefit of people.
The exception 2 to section 375 of IPC is an invasion of right to privacy,
because it is unreasonable. It is not for a reasonable justification or for any
person's benefit. The unconsented sexual activity may be hazardous to the health
of a woman. Therefore it is not for any sort of public good. Therefor by the
Govind v. State of M.P judgement also, an un-consensual or forced sex in a
marriage by a husband amounts to invasion of wife's privacy.
Kharak Singh v. State of U.P
, (1963) AIR SC 1295
Kharak Singh challenged the domiciliary visits at night by the Uttar Pradesh
police under their surveillance plan saying that it was violation of his right
to personal liberty and free movement.
The domiciliary visits was struck down as unconstitutional. The Supreme Court
also judged that privacy was linked to personal liberty. The majority ruled that
privacy was not a guaranteed constitutional right, however it held that article
21 was the repository of residuary personal rights and recognized the common law
right to privacy.
Importance of Consent
Every individual has a right to privacy and that provides them the right to make
personal choices. Consent is an agreement to participate in a sexual activity.
Consent is given freely, without pressure, manipulation or under the influence
Consenting and asking for consent are important as it is respecting the personal
boundaries of the partner.
Without consent, sexual activity is sexual assault or rape.
Changes needed in the legislation Suggestion:
Justice Verma committee report suggested that the marital rape exemption in the
IPC must be withdrawn. It must be done to protect the rights of married women
and give them physical and sexual right. Criminalization of marital rape is the
most urgent need of the hour.
Although minor married girls were protected from marital rape by Independent
Thought v. Union of India, the journey of a married woman to achieve complete
autonomy and privacy on her body and decisions is very long and seems
Exception 2 violates the right to equality enshrined in article 14 as it
discriminates against married women by denying them equal protection from rape
and sexual harassment. It creates two classes of women based on their marital
The exception immunizes actions of husbands that are done without consent of
The Supreme Court held in State of West Bengal vs. Anwar Ali Sarkar
any classification under article 14 of the Indian constitution is subject to a
reasonableness test that can be passed only if the classification has some
rational nexus to the objective that act seeks to achieve. But exception betrays
the purpose of section 375, which is to protect women and punish those who
engage in sexual activities without their consent. Therefore the classification
is unreasonable and discriminatory.
Be it a married or unmarried, a woman who is raped faces life-time emotional
trauma. But it must also be noted that it may be more difficult for a married
woman to escape abusive conditions at home because they are not legally
protected from unconsented sexual activity.
The exception is against Justice K.S. Puttuswamy (Retd.) v. Union of India
that an individual enjoys autonomy over their most personal and intimate
decisions including their sexual decisions! The privacy of a human being include
their decision to make choices for themselves and their body. And any sort of
pressure on suppression of that right is torturous and unacceptable. Every
person has right to privacy, right to choice and right to deny consent
irrespective of age, gender or marital status.
The crime of Marital rape goes beyond age. Every women, as any other human
being, has a right on her body, be it young or old, married or unmarried. A rape
is a rape! even if it is done by the husband. And she ought to be protected from
rape under law irrespective of her marital status.
Written By: Chetna Garg
- Law student from KES Shri Jayantilal H Patel
College of Law, Mumbai.
Email: [email protected]
, Twitter- @LawgicallyCorrect