Sexual intercourse by force by a husband on wife not an offence: Chhattisgarh HC

Rape Image Courtesy:livelaw.in

The Chhattisgarh High Court has discharged a man from the charges of rape under section 376 of the Indian Penal Code after it held that sexual intercourse or any sexual act with the wife by the husband would not constitute an offence of rape, even if it was by force or against her wish. The bench of Justice NK Chandravanshi drew this inference from the exception 2 of section 375 of IPC which defines in great detail as to what constitutes an offence of rape.

The criminal revision application was filed by the husband against the charges framed against him by Sessions Court, Bemetara under sections 498A (cruelty), 34 (common intention), 376 (rape) and 377 (unnatural offences) of the IPC.

The applicant’s counsel submitted that since the complainant and the applicant are wife and husband, the offences under sections 376 and 377 of IPC do not apply, as marital rape is not an offence and is not an offence in view of Exception II of Section 375 of IPC. He also submitted that carnal intercourse against the order of nature with any man, woman or animal voluntarily is a necessary ingredient of Section 377 of the I.P.C. which is not present in this case. However, the allegations by the wife stated that the husband had unnatural physical relations with her, inserting foreign objects in her vagina, despite her protest.

The counsel prayed that the impugned order be set aside and the applicants be discharged from the charges.

The exception 2 to section 375 which defines the offence of rape states, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

The court, in reading down this exception stated that the exception makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. The court thus inferred from this, “In this case, complainant is legally weeded 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”.

The court thus concluded that the offence under section 376 cannot be pressed against the applicant and discharged him from the same. The court, at the same time upheld the charge under section 498A relying upon written report and the statements of the complainant (wife) that she was subjected to cruelty by the applicants and was physically abused for dowry.

Coming to the charge of unnatural sex under section 377, the court read down the wife’s statement where she alleged that the husband had unnatural physical relations with her, but due to shame, she did not disclose about it to anyone. The court relied upon Gauhati High Court’s decision in Momina Begum vs. Union of India and ors. (Criminal Petition No. 98/2012; March 4, 2013) wherby it was held that, “penetration of any object by the offender into the sex organ with an intention to derive sexual pleasure is sufficient to constitute the sexual connection against the order of nature necessary to constitute the offence under Section 377 of the I.P.C. Therefore, abusing sex organ with an intention to derive sexual pleasure apart from establishing sexual connection it would also be a carnal intercourse against the ‘order of nature’.”

In Nimeshbhai Bharatbhai Desai -v- State of Gujrat (2018 SCC Online Guj 732), Gujarat high Court had held that “a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the I.P.C. Section 377 of the I.P.C. does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under Section 377 of the I.P.C.”

The court held that 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 IPC.

The court, thus found the charge under section 377 of IPC to be valid and upheld the same. The court only discharged the applicant from the charge of rape under section 376 of IPC.

The complete order may be read here:

This observation made by the court that 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, is merely an inference drawn by the court from the legal provisions of section 375 that gives the offence of “rape” a very wide meaning. Despite having such a wide scope, it exempts sex in a marital rape from the definition of rape even if it is forced and without consent, because in absence of marital relationship, the same would constitute the offence of rape.

It is not the court’s observation that is the issue but the legal provisions itself that needs to be amended. The court has its duty to the law of the land and with no alternative to the same, the court cannot go ahead and make an observation that marital rape is an offence. Of course a passing observation that the same should be an offence would read well coming from a high court and could be an obiter dictum and strengthen the demand for marital rape to be made an offence.

Especially, when Kerala High Court has recently recognised marital rape as a ground for divorce, the court could have given an obiter dicta on how marital rape should be an offence and how sexual intercourse by force and without the wife’s consent should amount to rape under the law.

The government is hesitant to criminalise the marital rape because it would require them to change the laws based on the religious practices, including the Hindu Marriage Act, 1955 which says a wife is duty bound to have sex with her husband, the court had observed. The court could not prosecute the husband for rape and instead directed that section 354 of IPC, for outraging the modesty of the wife, be invoked.

According to a National Family Health Survey report (2015), 5.4 percent of married women between 15-49 years of age in India reported that their husbands had physically forced them to have sexual intercourse against their will. At least 2.5 per cent women reported that their husbands physically forced them to perform any other sexual act without their consent.

An analysis of marital rape discourse and jurisprudence in India may be read here.