Author: Sai Gayathri Kandula, Student at Jindal Global Law School
INTRODUCTION
English law has been deeply engraved into our judicial system ever since the colonization. The traces of the English laws and ideologies can still be found in our books of law, even decades after our independence. One such law that seeped its way into our judicial system is Exception 2 under Section 375 of the Indian Penal Code, 1860. It is under this exception; our law in a very abhorrent manner immunizes marital rape. Marital rape is the “unwilling sexual intercourse between a husband and a wife”.When observed through the lens of exception 2 provided under Section 375 of the IPC, non-consensual sexual intercourse by the man with his wife who is above the age of 15 cannot be constituted as rape. Assumption of consent to sexual intercourse with the husband by the mere act of marriage is deeply embedded in these patriarchal laws. It is quite fascinating how the heinous act of raping a married woman by her husband is backed up by the grounds of the ‘sacred’ institution of marriage in India. Despite, all the notions of modernity and development, India has failed to climb out of its place from the 36 countries that don’t recognize marital rape as a criminal offense. It rather contravenes Articles 14 and 21 of the Indian Constitution. This paper hereby examines the implications of exception 2 under Section 375 of the IPC and how it violates Articles 14 and 21 of the Indian Constitution.
