‘Sexual intercourse by husband not rape, even if by force or against her wish’: Chhattisgarh HC

The Chhattisgarh High Court Thursday discharged a man from facing trial for raping his wife, saying that Indian law does not recognise marital rape if the wife is above 18 years of age.

The Court observed 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.

“…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.” Justice N K Chandravanshi relied upon an exception under Section 375 of the IPC.

The Court was hearing a criminal revision plea by the husband against the framing of charges based on the complaint by his wife, Indian Express reported.

The wife told High Court that she was subjected to cruelty, abuse and dowry harassment days after her marriage. Her complaint alleged that her husband had unnatural physical relations with her, and despite her protests, inserted his fingers and a radish in her vagina.

Judge went on to say: “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.”

While charges under Section 376 (punishment for rape) were deemed to be “erroneous and illegal,” the court went ahead to frame charges against him under Section 377 (unnatural offences) and Section 498A (relating to cruelty to women) after observing that his act of making unnatural physical relation with the wife attracted the said offence.

This judgment came 20 days after the Kerala High Court had held that marital rape is a valid ground for divorce even though it is not penalised in India, calling it “cruelty.”

Marital rape

According to the World Health Organisation, Sexual violence is defined as: “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.”

The marital rape is not recognised in 32 countries including India. In India, under section 375 of the Indian Penal Code (IPC), forced intercourse in marriages is considered to be a crime only if the wife is below the age of 18.