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Whether the Exception II of Sec. 375 of IPC, 1860 Constitutionally Valid or not

Sec.375 of Indian Penal Code, define the term Rape, which provides that, to constitute the offence of rape the essentials are required which are,

(i) Sexual intercourse must be left with a woman by a man, as understood in the term of section 375 (a) to (d).

(ii) Such sexual intercourse must tall under any of seven circumstances,
(a) Against her will;
(b) Without her consent;
(c) With consent obtained under fear of death or hurt;
(d) Consent is given under a misconception of fact that the man is her husband;
(e) Consent is given because of unsoundness of mind, intoxication or under influence of any stupefying or unwholesome substance;
(f) With a woman under eighteen year of age, with or without her consent
(g) With a woman who is unable to communicate her consent.

But aforesaid essentials for rape are having some exception also.

Such exceptions are;
i. If a woman who does not physically resist for penetration, by this reason it shall not be regarded as the Sexual Activity.
ii. A medical procedure or intervention shall not shape an offence of rape.
iii. Sexual intercourse or sexual act by a man with his wife, the wife not being under 15 year of age is not rape.

The third exception is known as Marital rape". And this exception of section 375, articulates that non-consensual sexual intercourse by the husband with his wife, if the wife is under the age of 15 years, then only intercourse praise as rape.

Mean if the wife is over the age of 15 yr than it would not be rape. By reading the Exception-2 with 7 circumstances, then the exception will prevail off. It means that if the wife is over 15 years then her consent or will become immaterial.

For this Prof. PSA Pillai wrote, in his book, Criminal Law I would code, if, thus, keep outside the ambit of rape a coercive and non-consensual sexual intercourse by a husband with his wife and thereby allows a husband to exercise, with impunity, his marital right of (non-consensual or undesired) intercourse with his wife.

Further, he added that" It is believed that the husband's immunity for material rape is premised on the assumption that a woman, on marriage, gives forever her consent to the husband on the assumption that a woman, on marriage, gives forever her consent to the husband for sexual intercourse. Her husband has the right to have sexual intercourse with her, whether she is willing or not, and she is under obligation to surrender or submit to his will and desire.

As he pointed that husband was right to have sexual intercourse with her even without her will or consent. This comment is too harsh on married women. I think by the time when Prof. Pillai pointed this he forgot that this provision is of penal code which has access only in India. And this a country, where women got worship like a goddess. And in this modern era where every nation is recognizing the sexual autonomy of women, we must have he came forward to offend the self-esteem and dignity of women.

In the case of State of Karnataka v. krishnappa[1], where it was 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 is a serious blow to her supreme honour & offends her self-esteem &dignity it degrades and humiliates the victims.

Even in case of Independent though v. Union of India[2], Justice Deepak Gupta held that can she be deprived of her right to say yes or no to having sex with having her husband, even if he has consented for the marriage? In my view, there is only one answer to this and the answer must be a resounding NO.

It is also held in this case that, Constitutionally a female has equal as a male and no statute be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished.


In the case of Sakshi v. Union of India[3], the Supreme Court had to concede the inadequacies with concerning law relating to rape and had suggested that the legislature should bring about changes in the law. After passing the Criminal law amendment bill, 2013 rape was reformulated as the most specific event where the House of People by an amendment tried to enlarged to the ambit of rape and the perception by making oral and anal act as amounting rape.

The Domestic violence Act 2005, has to dispense numerous civil remedies and various providers such as the cruelty and other matter are dealt under. The number of victims under the marital rape scenario is being increased but the legislature is ignorant to criminalize such an offence.

The women are ignorant of what the actual scenario is and the law which are prevailing in the Indian Penal Code for them. Moreover in case of Sichita Srivastava v. Chandigarh Administration, where it was held that the right to make a reproductive choice was equated with personal liberty under Article 21 of the Constitution, privacy, dignity and bodily integrity and includes the right to abstain from procreating.

Further, paragraph 22 of the J. Verma Committee Report, it was held there is no doubt that a womens right to made reproductive choice is also a dimension of personal liberty as understood. Under Article 21 of the Constitution Of India, it is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. This view expressed by J. Verma was that Marriage is in modern times regarded as a partnership of equal & no longer one in which the wife must be the subservient chattel of the husband.

I also like to add that Article 21 gives every person right to like of dignity the right of a woman to maintain her bodily integrity is effectively destroyed as her husband effectively has fall control over her body and can subject her to sexual intercourse without her consent or without her willingness since such an activity would not be rape. Anomalously, though her husband can rape her he cannot molest her for if he does so he could be punished under the provision of the Indian Penal Code.

This was recognized by the law commission of India in its 172nd Report but was not commented upon. However, this particular provision also infringes the fundamental rights of women. In Independent thought v. Union Of India held that the execution craved out in India Penal Code creates on an unnecessary and artificial distinction between married women and unmarried women has no rational nexus with any unclear objection sought to be achieved. The artificial distinction is arbitrary and discriminatory and is not in the best interest of the women.

The Exception-2 of section 375 violates of Article of the constitution. Even, in the case of Sri Mahedab Jiew v. Dr B.B. Sen[4], the Calcutta High Court, observed, The Special provision for women in Article 15(3) cannot be construed as authority a discriminatory against women and the word "for" in the context means "in favour of". Thus, Section 375 is not protected by Article 15(3) of the Constitution as a special provision for women because it discriminates against the women. Henceforth, Sec. 375 of Indian Penal Code infringed article 14,15 and 21 of the Constitution of India.

However, we would not the 1st nations who make it criminalized. In the United Kingdom, Rv.R (1991)[5], House of the lord, heard the case and changed the law to the degree that it deduces that under U.K law a man could rape his wife. The court ruled that "ever within a marriage any non-consensual sexual activity is rape.

Now in U.K., Sexual offence Act 2003, it enunciates that, the offence occurs when an individual commits a sexual act without the consent of their Spouse or their ex-spouse, on against their will. If someone is unable to consent is obtained by force, threat or intimidated the sexual act is committed without consent. And along with by the time 1993 marital rape was a crime in all 50 states. So, then we must take the steps because the country where we secure and protect the rights of people of the state and secure everyone that we shall take cognizance on the violation of anyone right. Otherwise this we will be injustice with all women in society.

In Modern time, where patriarchy and gender inequality is almost too striking it down, by providing this right to our respectable household, or all working women, who make their nation, family proud on them. We should thank them by proving their right and by abolishing the exception-2 of Section of Indian Penal Code.

Conclusion
For striking out the patriarchy and gender inequality Justice Chandrachud said in the case, Joshep shine v. Union of India (2018), he wrote

The boundaries of that space are defined by what women should or should not be. A society which perceives women as pare and an embodiment of virtue attack to rape, honour killing, sex-determination and infanticide".

He wanted to say that society expected women to be mute spectators too, and even accepts "egregious discrimination" at home, and that "anachronistic conceptions of chastity' and honour' have dictated the social and cultural lines of women, depriving them of the guarantees of dignity and privacy, contained in the constitution."

The notion that women, who are equally entitled to the protections of the constitution as their male Counterparts may be treated as an object capable of being possessed, in an exercise of subjugation and inflicting indignity.

Henceforth, in the light of the above observation, it can be concluded that exception-2 of Section 375 is constitutionally invalid and it shall be struck down.

End-Notes
[1] (2000) 4 SCC 75
[2] 2017 SCC Online SC 1222
[3] 1999 CriLJ 5025
[4] AIR 1951 Cal 563
[5] (1992) 1 AC 599

More Articles on Sec. 375 of IPC Rape Laws:

Does Section 375 of IPC Include Marital Rape
Rape By Women or Rape of Men
Rape Laws in India
Rape law in India and World
Change in definition of Rape in India
A Woman Can't Rape Woman
Marital Rape versus Conjugal Right
Crime Against Women and its Impact on Them
A case study need on capital punishment in context of Rape
Capital Punishment for Rape. What justice are we taking about?
Redefining the Rape Laws in India: A Constructive and Comparative Approach
Rape Law In India: Problems In Prosecution Due To Loopholes In The Law
Sexual Harassment and Rape Laws in India:
Sexual harassment and rape are two sides of the same coin. Both showcase the power of man to dominate that of women. Both have one victim- women.

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