Husband can’t be charged with rape for having sex with wife, proceedings under section 377 for forced unnatural sex:Gujarat HC

Ahmedabad:

The Gujarat High Court today in a significant observation said that forcing a wife to perform sex can’t invite charges of rape but was however punishable as an act of cruelty and a wife can initiate proceedings under section 377 of the Indian Penal Code (IPC) against her husband for forcing her for unnatural sex.

The single bench court of Justice J B Pardiwala while delivering its verdict on a point in a matter pertaining to the dispute between a doctor couple of Sabarkanth district in North Gujarat observed this.

The wife, a lady doctor had filed a case of rape, harassment and unnatural sex against her husband, also a medical practitioner, in Idar police station of Sabarkantha district. The husband had moved court seeking quashing of the complaint.

The high court after completing the hearing on the point of as to which section should be applied in this case in the first week of December last year had reserved its verdict. Today it delivered its order on the point.
The complainant alleged that her husband forced her to have sexual intercourse with him against her wishes and that he would also subject her to have oral sex and indulge in unnatural sexual activities, other than torturing her for dowry.

The court observed that a husband could not be prosecuted for the offence of rape punishable under Section 376 of the IPC at the instance of his wife as the marital rape is not covered under Section 375 of IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape. The court however said a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the IPC.

The court also observed that even though a husband had the right to have sex with his legally wedded wife, she should not be treated as his property and the act of sex should not be without her consent.
The state government had in this matter submitted before the court that forcing a wife to perform oral sex invites charges of domestic violence and not of rape and unnatural sex. During the course of hearing the high court had in November last year formulated three questions whether the act amounts to unnatural sex punishable under Section 377 of IPC, rape under Section 376 and mental and physical cruelty in matrimonial life under Section 498A.
In response to the high court’s query, the state government cited various authorities and submitted that there is an exception in the definition of rape for a married couple and hence charges of rape are not attracted in forcible oral sex with a wife.

The government further submitted that since there is no question of rape, there is also no possibility that such an act attracts charges under unnatural sex. However, the government stated that the gesture by a husband to force a wife to perform oral sex without her consent is definitely an act of cruelty and hence attracts charges under Section 498A of IPC.

On the other hand, the woman’s counsel had insisted that since the man forced his wife to indulge in oral sex without her consent, it is nothing but rape, unnatural sex and domestic violence.

The Defendant doctor had said that he can’t be charged with rape for having sex with his own wife.

The court has given him partial relief.

DeshGujarat