Sexual Intercourse Or Any Sexual Act By Husband With Legally Wedded Wife Not Rape Even If It Was By Force Or Against Her Wish: Chhattisgarh HC

The Chhattisgarh High Court has discharged a man of the offence of marital rape after observing that sexual intercourse or any sexual act by a husband with his legally wedded wife is not rape even if it was by force or against her wish.

However, the Court went ahead to frame charges against him under sec. 377 of IPC after observing that his act of making unnatural physical relation with the wife attracted the said offence.

Relying on Exception II of Section 375 of the I.P.C., Justice N.K. Chandravanshi said:

\”…sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In this case, complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish.\”

Furthermore, it observed:

\”Although, except insertion of finger and radish in her private part, what other unnatural physical relation he made with the complainant, she has not stated, which is a matter of evidence, but, only on that ground, charge framed under Section 377 of the I.P.C. cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the I.P.C. where 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.\”

A criminal revision was preferred against a Sessions Court order which had framed charges under 498-A, 34, 376 and 377 against the husband and sec. 498A against in laws on a complaint was registered by the wife.

It was her case that after some days of marriage, they started harassing her for dowry and committed physical violence with her.

Specific allegations against the husband were that he had made unnatural physical relation with her by inserting fingers and radish in her vagina, despite her protest.

It was thus the case of the accused husband that being his legally wedded wife, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of I.P.C. are spelt out against him as in India, marital rape is not recognized and the same is not an offence in view of Exception II of Section 375 of the I.P.C. Reliance was placed on the judgment of the Gujarat High Court in Nimeshbhai Bharatbhai Desai v. State of Gujrat.

\”Therefore, charge under Section 376 of the I.P.C. framed against the applicant No. 1/husband is erroneous and illegal. Hence, he is entitled to be discharged from the charge under Section 376 of the I.P.C,\” the Court said.

However, on the charges under sec. 498A, the Court was of the view that there was no infirmity with the charge as written report and both the statements of the wife showed that after few days of marriage, she was subjected to cruelty by all the accused persons due to demand of dowry.

While framing charges against the husband under sec. 377, the Court relied on the decision in case of Momina Begum v. Union of India by the Gauhati High Court wherein it was observed that if dominant intention of the offender is to derive sexual satisfaction by unnatural way, such act of the offender would attract the offence.

\”Therefore, I do not find any infirmity or illegality committed by learned trial Court in framing the charge under Section 377 of the I.P.C. against the applicant No. 1/husband,\” the Court observed at the outset.

Partly allowing the revision petition, the Court discharged the husband under sec. 376 of IPC and upheld the charges under sec. 377, 498A and 34 of IPC.

Title: Dilip Pandey & Ors. v. State of Chhattisgarh

Source: https://www.livelaw.in/news-updates/marital-rape-sexual-intercourse-sexual-act-husband-wife-not-rape-force-against-her-wish-chhattisgarh-hc-180283