Exception 2 to Section 375 (rape) of IPC says that sexual intercourse or sexual acts by a man with his wife is not “rape”.
The Gujarat high court in December 2021 agreed to consider the constitutional validity of the exception accorded to marital rape in the Indian Penal Code (IPC) and issued notices to the Union and state governments on a public interest litigation challenging the controversial provision.
A division bench of Justices JB Pardiwala and Niral R Mehta then observed,
It is high time that a writ court undertakes the exercise of considering, whether the exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman’s fundamental right to sexual autonomy subject to the whims of her husband.
The bench issued notice to attorney general KK Venugopal, the state of Gujarat and additional solicitor general Devang Vyas.
Once again Men’s Rights NGO Men Welfare Trust (MWT) – who is an intervener in the Marital Rape PIL at Delhi High Court – has approached the Gujarat High Court with a request to allow it to join the hearing on a PIL seeking to criminalise marital rape by challenging exception in IPC provisions that protects men from criminal prosecution for forcing non-consensual intercourse with their wives.
Another senior citizen from Vadodara, Rajanikant Kataria, also filed an application seeking liberty from the court to become part of the litigation. His lawyer submitted that Kataria wanted to oppose the demand of criminalising marital rape and urged the HC not to decide the issue on the basis of common law, and the ancient and traditional legal system of India should also be taken into consideration.
Gujarat High Court
The bench of Justice J B Pardiwala and Justice Niral Mehta told MWT that it would not decide on impleadment on Wednesday, but whenever it decides on the issue, the court would hear them. The court asked Kataria also to wait. MWT submitted that it has been an intervener in the proceedings pending before the Delhi high court on the same subject.
Meanwhile, the bench asked the petitioner to wait for the verdict of the Delhi court on the issue, and it would proceed with the matter once the Delhi HC delivers its verdict.
The petitioner’s lawyer submitted that if the Delhi HC strikes down the Exception 2 in section 375 of the IPC and makes marital rape a prosecutable offence under section 376 of IPC, the PIL filed in the Gujarat HC would become infructuous. To this, the bench said that if the provision is struck down, the petitioner’s demands would be met. Justice Pardiwala said,
Even if the decision (of the Delhi HC) is otherwise, we may always look into this issue on our own.
PIL In Delhi High Court
A similar litigation is pending in Delhi High Court that heard back to back arguments before Assembly Elections in 5 states – UP, Punjab, Goa, Manipur & Uttarakhand. The Delhi High Court is going to pronounce its verdict.
Government of India told the court that it has written to all states and union territories, seeking their stand on the issue, but is yet to receive a response from any of them, in absence of which it cannot formulate its decision.
Speaking with MDO, Amit Lakhani – President, Men Welfare Trust said,
We won’t be making a statement as the matter is subjudice in the Hon’ble Gujarat High Court, but yes we have taken this step as we feel there should be a balanced representation on both sides in such sensitive and important matters.
- Over the years, matrimonial laws and laws pertaining to crimes against women have been framed with almost zero consultation with Men’s Rights Groups
- Thus, today laws such as Domestic Violence, Rape, Cruelty (498-A), Maintenance (Section 125 CrPC) are not gender neutral and women in India are armed with heavily biased laws in their favour, which have become extortion tools against husbands and their families
- The term ‘Marital Rape’ has been designed and packaged in a way that anyone having a contrary view, is called a Rape Apologist
- However, in reality the opposition by Men’s Rights Groups is about Criminalising Sex in the Marriage, which will be solely rested on the testimony of a wife
- You may leave your comments for Men Welfare Trust on the tweet below
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Men’s Rights Activist Amit Lakhani Argues Against Marital Rape PIL
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