Sex with wife without her consent not rape: Guj HC
TIMES NEWS NETWORK 03.04.2018
Ahmedabad: The Gujarat high court ruled on Monday that a wife cannot charge her husband with marital rape even if the man has sex with her without her consent if she is above 18 years of age.
Justice J B Pardiwala observed that the offence of rape by a husband is not an offence punishable under IPC Section 375, which defines rape. While making this observation, Justice Pardiwala lamented the position of a law which does not enable a woman to prosecute her husband for rape and called for legal provisions so that a woman can protect her body the way she has been enabled to protect her other rights.
The HC quoted, in great detail, legal provisions existing in countries across the world on marital rape and observed that the legislature must criminalise the offence. He said the mere apprehension of its misuse by “unscrupulous” women should not be a deterrent to enacting legislation to protect women battered by marital rape, which is rampant in India.
The high court made these observations while dealing with a case involving a Sabarkantha-based doctor couple. The wife had accused her husband in August last year of forcing her to have sex, including oral sex, without her consent. The husband had approached the HC for the quashing of his wife’s criminal complaint, lodged with Idar police station.
The HC said a wife can initiate criminal proceedings against her husband for unnatural sex under IPC Section 377. Consent is not a determining criterion in such a case. Any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under IPC Sec 377. However, in a marital relationship, “except the sexual perversions of sodomy, buggery and bestiality, all other sexual perversions would not fall within the sweep of Sec 377 of the IPC”, the HC said and observed that the charge of forced oral sex levelled by the woman in this case would not attract the charge of sodomy.
The HC added that forcing a wife to have sex would attract the charge of outraging the modesty of woman under IPC Sec 354 and ordered the police to investigate the case in this direction.
TIMES NEWS NETWORK 03.04.2018
Ahmedabad: The Gujarat high court ruled on Monday that a wife cannot charge her husband with marital rape even if the man has sex with her without her consent if she is above 18 years of age.
Justice J B Pardiwala observed that the offence of rape by a husband is not an offence punishable under IPC Section 375, which defines rape. While making this observation, Justice Pardiwala lamented the position of a law which does not enable a woman to prosecute her husband for rape and called for legal provisions so that a woman can protect her body the way she has been enabled to protect her other rights.
The HC quoted, in great detail, legal provisions existing in countries across the world on marital rape and observed that the legislature must criminalise the offence. He said the mere apprehension of its misuse by “unscrupulous” women should not be a deterrent to enacting legislation to protect women battered by marital rape, which is rampant in India.
The high court made these observations while dealing with a case involving a Sabarkantha-based doctor couple. The wife had accused her husband in August last year of forcing her to have sex, including oral sex, without her consent. The husband had approached the HC for the quashing of his wife’s criminal complaint, lodged with Idar police station.
The HC said a wife can initiate criminal proceedings against her husband for unnatural sex under IPC Section 377. Consent is not a determining criterion in such a case. Any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under IPC Sec 377. However, in a marital relationship, “except the sexual perversions of sodomy, buggery and bestiality, all other sexual perversions would not fall within the sweep of Sec 377 of the IPC”, the HC said and observed that the charge of forced oral sex levelled by the woman in this case would not attract the charge of sodomy.
The HC added that forcing a wife to have sex would attract the charge of outraging the modesty of woman under IPC Sec 354 and ordered the police to investigate the case in this direction.
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