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Chhattisgarh HC Says Forceful Sex By a Man Against His Wife Is Not Rape

Justice N.K. Chandravanshi referred to Exception 2 of Section 375 of the Indian Penal Code (which deals with the offence of rape) which states that a sexual act by a husband with his wife (provided she is not minor) does not constitute rape.

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New Delhi: The Chhattisgarh high court has ruled “sexual intercourse or sexual acts by a man with his own wife…would not constitute an offence of rape, even if it was by force or against her wish”, and discharged the man in question from the charge filed against him by his wife, Bar and Bench has reported.

Hearing a criminal revision plea moved by the husband and his family members challenging the charges filed against him by his wife, Justice N.K. Chandravanshi referred to Exception 2 of Section 375 of the Indian Penal Code (which deals with the offence of rape) which states that a sexual act by a husband with his wife (provided she is not minor) does not constitute rape.

“In this case, the complainant is legally wedded wife…therefore, sexual intercourse or any sexual act with her by… the husband would not constitute an offence of rape, even if it was by force or against her wish,” the judge ruled.

However, the judge upheld other charges filed against the accused, namely Sections 498A (relating to cruelty to women) against the husband and his family members, and Section 377 (unnatural offences, carnal intercourse against the “order of nature”).

In her complaint, the woman accused her husband and his family members of subjecting her to cruelty, abuse and dowry harassment days after her marriage. She also alleged that her husband had inserted his fingers and radish in her vagina, despite her protest, adding that he had an unnatural physical relationship with her. According to her, efforts to settle the dispute before moving the court and approaching the police went in vain.

Upholding charges framed under Section 377, the judge said, ” … where the dominant intention of the offender is to derive unnatural sexual satisfaction, repeatedly insert any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the I.P.C.”

On the other hand, the judge also upheld the charges framed under Section 498 A, adding that there were written complaints and statements by the complainant, which deal with the fact that she was subjected to cruelty. Her statements were also supported by her parents, the court noted.

Also read: ‘Marital Rape a Form of Cruelty, Is Ground to Claim Divorce’: Kerala HC

“Those facts have also been stated by their neighbouring witnesses in their police statements. Therefore, I do not find any infirmity in framing charges under Section 498-A/34 of the I.P.C. against the applicants,” the court said.

In a similar case of a wife accusing her husband of rape, the Kerala high court recently ruled that while marital rape is not a criminal offence under Indian law, a wife, however, is entitled to divorce as such acts can be treated as “cruelty”.

Despite calls from various quarters to criminalise marital rape, including from the Justice Verma committee formed after the Nirbhaya gangrape, the Union government has been reluctant to do so. It has stated that such an act would “destabilise the institution of marriage” and could potentially become an easy tool to “harass husbands”.

Writing about marital rape and the government’s stance on the issue, Sumedha Choudhury on The Wire said, “The government seems to have found some bizarre correlation between saving the institution of marriage and not criminalising marital rape. It is difficult to understand how rape of a woman by her husband is any less brutal than triple talaq or polygamy, which the present government seems to have been much concerned about. Such ignominious behaviour of the Centre echoes our innate societal misogyny, which over the years has led to further subjugation of women.”