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Senior Adv. Rebecca John: Exception to Section 375 of IPC should be viewed as ‘instrument of oppression’

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Marital Rape Gujarat High Court Law Insider

Munmun Kaur

Published On: January 21, 2022 at 13:12 IST

The Delhi High Court on January 20, continued to hear the batch of petitions against the exception to Section 375, Indian Penal Code (IPC) which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

Senior Advocate Rebecca John, who is the Amicus Curiae in this matter submitted before the High Court that if a woman is subjected to sexual intercourse without her consent, then the exception to Section 375 of the Indian Penal Code (IPC) should be viewed as an instrument of oppression.

John further argued, “What are the consequences assuming that this exception is allowed to exist?” While referring to the consequences, John asked whether the Court will allow a husband, who is suffering from a venereal disease, to claim the exception and also permit it in a case where a woman is ill and a sexual relation will have a detrimental effect on her health.

John while referring to the Puttaswamy verdict, argued that the validity of Exception 2 has to be tested not just with reference to the object of State action and the twin test laid down in that judgment, but also on the basis of its effect on the guarantees of freedom.

The Senior Advocate also cited Supreme Court’s Judgment in Joseph Shine, where Section 497 of the IPC was struck down. She submitted that Section 497 and Section 375 have some commonalities as both the Sections highlight dominance of one partner and the subordinate role of the other. She pointed out that while on one hand, 497 allowed only husbands to prosecute the other man for having relations with his wife, 375 gave him an exception, whereas in both cases, the reverse is not true.

Stating that the exception is in the nature of an immunity, John stressed that the issue needs a serious judicial intervention as the question before the Court does not pertain to trivial cases but a serious case like forceful sexual intercourse.

The Court will continue its hearing on the matter on January 21.