December 21, 2024

Exception 2 Of Section 375 Should Be Read Down

By Sunil Garodia
First publised on 2021-08-28 07:31:31

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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.

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A refusal to have sex is still a no even if the woman is saying it to her husband. If a woman says no to sex, it means that at that point of time she does not want to have sex with the person who is demanding it. If the act is still performed despite her refusal, it is rape. But Indian laws have granted the husband an exception. In Section 375, under Exception 2, it is not considered rape if a husband forces himself on his unwilling wife. In that sense, the order of the Chhattisgarh High Court discharging a man accused of sexual assault on his wife cannot be faulted as the judge went strictly by the book.

Indian laws are in conflict over the issue. The Protection of Women from Domestic Violence Act, 2005 defines domestic violence as including, among other things, sexual abuse which it defines as, 'any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman'. The definition here does not specify the acts that constitute sexual abuse. On the other hand, Section 375 exception 2 grants immunity to a husband from any crime if he has forced sex with his wife. Both these laws are contradictory because forced sex by a husband can be said to be a 'conduct of a sexual nature that abuses, humiliates, degrades or violates the dignity of a woman'.

But has not the time come to do away with this provision that 'legalizes' rape in marriage and which originated in Victorian times? While it was never acceptable to give ownership rights to a husband over his wife and her body, perhaps those were times when such things were not considered improper. But now times have changed. The relationship between a husband and his wife is now more equal than ever before. Although sex is an integral part of marriage, it has to be recognized that it is not something that can be done at the push of a button. If, for any reason whatsoever, the wife is unwilling, the husband has no right to force himself on her, irrespective of what the law says.

Recently, the Kerala High Court has held that forced sex in marriage is a ground for divorce as it amount to cruelty. It said that "right to respect for his or her physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy."  The court also said that if the husband treats her body as something owned by him and commits the sexual act against her will, it should be considered marital rape. If something is considered cruel, how can it continue to be legal? The Supreme Court should read down the exception in Section 375 as it is not in consonance with the meaning of marriage in the present times and never was.