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Authored by - Isha (Intern at Legal Soch Foundation)
Meta description: In the landmark case of Independent thought vs. Union of India it was held that sexual intercourse with a minor below 18 years constitutes the offense of rape under section 375 of the Indian penal code. Justice Gupta, spoke on marital rape in the context of right to privacy, emphasized that a woman has all right to say no to her husband.
Keyword: woman, marital rape, rape, Indian Penal Code, Supreme Court, Judge.
Justice Deepak Gupta was part of the Supreme Court bench led by Justice Madan B Lokur in the case of Independent Thought v. Union of India. In this case, it was held that sexual intercourse with a minor aged below 18 years will amount to the offence of rape.
The Indian penal code (IPC), Section 375, defines rape as any sexual intercourse involving non-consensual sexual contact with a woman; nevertheless, exemption 2 of Section 375 prohibits rape in certain circumstances. , Sexual intercourse between a husband and a wife aged above 15 years does not constitute rape, but in the case of Independent India, this age was read as 18 years.
In the context of the right to privacy, Justice Deepak Gupta (former Supreme Court judge) shared his thoughts on marital rape. A former judge was delivering a lecture on one of the events on the topic of the development of fundamental rights in the last decade".On being asked his views on marital rape, which is pending in the Supreme Court, he expressed his views by saying that "women have a right to say no to their husbands as well. Just because you are husband and wife, does your wife not have the right to say no to having sex? When a woman says no, it means no; there is nothing more to say. It is very simple to understand; we just have to grow our patriarchal and archaic mindset.
On May 11, 2022, a Division Bench of the Delhi High Court, which consists of Justice Rajiv Shakdher and C Hari Shankar, delivered a split judgement on challenging the exceptions of marital rape in the IPC. Justice Shakhder held that Exception 2 of Section 375 in the IPC is unconstitutional, while Justice Hari was of the opinion that the exception is based on the "intelligible differentia". As a substantial question of law was involved, judges granted leave of appeal to the Supreme Court.
Now a bunch of petitions are in front of the Supreme Court against the decision of Hrishikesh Sahoo, the state of Karnataka, and others that allowed the prosecution of a man for raping his wife.
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