Sexual Intercourse By Husband Not Rape, Even If By Force Or Against Wife’s Wish: HC
Chhattisgarh: Chhattisgarh High Court has discharged a man accused of marital rape, saying that sexual intercourse by a husband with his legally wedded wife is not raped even if it was by force or against her wish.
The High Court, however, ordered that charges be framed against the accused under Section 377 of IPC for his act of making unnatural physical relations with his wife, LiveLaw reported.
Relying on Exception II of Section 375, Justice NK Chandravanshi in his judgment held that if the wife is not a minor, sex by the husband ‘will not be treated as an offence of rape, even if by coercion’.
The court also held that the charges framed under section 377 cannot be said to be false ‘where the main object of the offender is to obtain unnatural sexual gratification, by repeatedly inserting an object into the sexual part of the victim and consequently obtaining sexual pleasure’. The order stated that such action would amount to physical intercourse against the order of nature and would attract an offence under section 377.
The court preferred the criminal revision of an order of the Sessions Court in which charges were framed against the husband under sections 498-A, 34, 376 and 377 and against the in-laws under sections 498-A on the complaint of the woman. She had alleged that she was harassed and physically tortured by her in-laws while demanding dowry. She also alleged that her husband forcibly had unnatural sex with her.
The High Court held that there is no such material in any offence punishable under Sections 376 and 377 of the IPC in India as marital rape is not recognized in the country and it is not an offence subject to Exception II to Section 375 of Gujarat. The court relied on the judgment of the Gujarat High Court in the Nimeshbhai Bharatbhai Desai vs State case.
The High Court relied on the Gauhati High Court judgment in Momina Begum v Union of India while framing the charges against the husband under Section 377. In this case, the Gauhati HC had observed that if the main objective of the offender is to obtain unnaturally sexual gratification, then such an act of the offender would attract an offence.
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