John took the Court through the legislative history of the Section as well as how the exception came into being. She referred to the change in the age bar that has developed over the years related to the Section. It was submitted that while no age restriction existed in the 1837 draft, a bar of 10 years was brought to the Section in 1860, when the Code was first accepted. This was ultimately raised to 18 years by the Supreme Court judgment in Independent Thought, where it criminalised rape of minor wives.
She submitted that marriage is the foundational basis of the exception in question.
“If I were to look at Exception 2 of Section 375, the foundational basis of that is the factum of marriage. Once there is a valid marriage, the Exception does not need to be pleaded in any way. Therefore, as it stands today, once a marriage is established, no prosecution can be authorised.”
John referred to the Sexual Offences (Amendment) Act,1976 of the United Kingdom, which effectively condoned marital rape. The exception was finally struck down by the House of Lords in 1991.
“It was held that the having sex with any woman without her consent is unjustifiable…The House of Lords said that striking down the exception was not creation of a new offence, but removal of a common law fiction,” John submitted.
Source: Barandbench
