Gujarat HC rules against marital rape

The Gujarat High Court on Monday ruled that a husband cannot be charged with marital rape even if he has sex with his wife without her consent.

Lamenting the position of law that does not enable a woman to prosecute her husband for rape, Justice JB Pardiwala observed that the offence of rape by a husband cannot be termed as an offence punishable under IPC Section 375, which defines rape.

He called for legal provisions for a woman to protect her body the way has been enabled to protect her other rights.

Quoting in great detail the legal provisions existing in countries across the world on marital rape, the HC observed that the legislature must criminalise the offence and the mere worry over its misuse should not cause a hindrance to enacting legislation to protect women battered by marital rape, which is rampant in India. 

Stating that a wife can file criminal proceedings against her husband for unnatural sex under IPC Section 377, the HC said that consent is not a determining criterion in such a case as any offence against the order of nature and can be described as carnal penetration would constitute an offence under IPC Sec 377.

However, leaving the exception of the sexual perversions of sodomy, buggery and bestiality, all other sexual perversions in a marital relationship would not fall under the Sec 377 of the IPC, the HC said, further stating that the woman, in this case, charged her husband of forced oral sex, which would not attract the charge of sodomy. 

The HC added that a husband forcing his wife to have sex would attract the charge of outraging the modesty of a woman under IPC Sec 354.