'Unnatural Sex With Wife No Offence': The Doublespeak of India's Rape Laws

Indian laws fail to address the realities of non-consensual and abusive acts within marriage, writes Tahini Bhushan

The lack of recognition of marital rape and the absence of consent in marital relationships undermine the protection of women’s rights.

(Photo: Kamran Akhter/The Quint)

The concept of reasonable doubt, often considered both a boon and a bane of criminal law, plays a pivotal role in ensuring justice while simultaneously posing challenges, particularly in cases involving gender rights.

On one hand, it safeguards individuals from wrongful convictions by requiring the prosecution to prove guilt beyond a reasonable doubt. On the other hand, it can create hurdles in securing convictions, especially in sensitive cases where evidence may be circumstantial or difficult to corroborate.

The Chhattisgarh High Court order acquitting a man accused of causing his wife’s death due to unnatural sexual acts exemplifies this complexity. As per the interpretation, if the wife is above the age of 15 years, any sexual intercourse or sexual act by the husband with his wife cannot be classified as rape under the law, as per the marital exception in Section 375 of the Indian Penal Code (IPC).

Glaring Loopholes in Rape Laws

In such cases, the absence of consent from the wife for unnatural acts loses its legal significance, as the law does not recognise marital rape.

This interpretation highlights a significant gap in the legal framework, where the lack of recognition of marital rape and the absence of consent in marital relationships undermine the protection of women’s rights.

While the law provides exceptions for marital relationships, it fails to address the realities of non-consensual and abusive acts within marriage, leaving victims without adequate legal recourse.

This case underscores the urgent need for legislative reforms to reconcile these inconsistencies and ensure that the law evolves to protect the rights and dignity of individuals, irrespective of their marital status.

Only through such reforms can the legal system achieve a balance between upholding traditional norms and addressing the pressing need for gender justice.

What's the Chhattisgarh Case About?

On the night of 11 December 2017, a deeply distressing incident unfolded. 

The victim, married to the appellant, endured an act of unimaginable violation at the hands of her own husband who subjected her to unnatural sexual acts, causing her excruciating pain and trauma. Overwhelmed by pain and humiliation, she confided in her sister and neighbours, bravely recounting the horrific details of what had transpired.

Her condition worsened, and she was rushed to Maharani Hospital for urgent medical treatment. It was there that the gravity of her suffering came to light, prompting the hospital to report the incident.

A case was registered under Section 376, 377 and 304 of the Indian Penal Code, marking the beginning of a legal battle for justice.

The points for determination before the High Court revolved around two critical legal questions. The first was whether the alleged acts of the accused, who was the husband of the victim, attract charges under Sections 376 (rape) and 377 (unnatural offences) of the IPC, particularly in the context of a marital relationship, where such crimes are often shrouded in societal and legal complexities.

The second question examined whether the conviction under Section 304 (culpable homicide not amounting to murder) by the trial court was legally sustainable, given the facts and circumstances of the case, including the victim’s dying declaration, medical evidence, and the alleged role of the accused in causing her death.

These questions highlight the delicate balance between addressing marital sexual violence and ensuring that legal interpretations align with the principles of justice, while also scrutinising the adequacy of evidence to sustain a conviction under Section 304 of IPC.

The case underscores the need for nuanced legal reform to address gaps in the protection of victims within marital relationships and the challenges of proving culpability in such sensitive matters.

Dying Declarations and Judicial Scrutiny 

One of the prosecution witnesses, the magistrate who recorded the dying declaration, made a significant admission during the proceedings, revealing inconsistencies in the documentation process. 

He acknowledged that the dying declaration does not mention the deceased informing him that her husband had committed an unnatural sexual act, which allegedly caused her injuries. This omission raises critical questions about the completeness and accuracy of the dying declaration as a piece of evidence. 

Furthermore, the magistrate admitted to being aware of additional statements made by the deceased outside the formal dying declaration, where she reportedly disclosed that her husband had subjected her to forceful and unnatural sexual acts. However, this crucial detail was not included in the official dying declaration recorded before him.

This discrepancy not only casts doubt on the thoroughness of the recording process but also highlights potential flaws in the investigation and documentation of such sensitive cases.

Such inconsistencies underscore the challenges faced by the legal system in ensuring that all relevant information is captured accurately, especially in cases involving heinous crimes.

The Supreme Court, in the case of Naeem vs State of Uttar Pradesh, reiterated the principles governing the reliance on dying declarations as the sole basis for conviction.

The court emphasised that while a dying declaration can form the sole basis for conviction if it inspires full confidence, certain factors must be satisfied. These include ensuring that the deceased was in a fit state of mind, that the statement was not the result of tutoring or prompting, and that it was coherent, consistent, and free from inducement.

The court also clarified that the requirement for corroboration is not an absolute rule but a rule of prudence.

If, after scrutiny, the court is satisfied that the dying declaration is true and voluntary, it can form the basis of conviction even without corroboration.

However, if the declaration is suspicious or suffers from infirmities, such as the deceased being unconscious or unable to make a statement, it cannot be relied upon.

In the present case, the lack of corroborative evidence and the doubts raised about the dying declaration’s reliability make it insufficient to sustain a conviction, highlighting the need for meticulous judicial scrutiny in such matters. This case underscores the importance of ensuring that legal procedures are thorough, transparent, and free from inconsistencies to deliver justice effectively.

Reasonable Doubt vs Gender Justice

The conflict between these sections is clear: Section 375 excludes marital rape, while Section 377 does not explicitly exclude marital relationships. This inconsistency makes it difficult to apply Section 377 to acts between spouses, especially when Section 375’s framework does not recognise marital rape.

This legal ambiguity leaves victims of marital sexual violence without adequate protection and highlights the need for legislative reform.

In October 2024, the Supreme Court of India declined to entertain a Public Interest Litigation (PIL) that sought directions under Article 142 to include sexual offences against men, trans persons, and animals under the newly enacted Bharatiya Nyaya Sanhita (BNS), which replaced the Indian Penal IPC on 1 July 2024. The court emphasised that it cannot direct the Parliament to create new offences, as such matters fall within the legislative domain.

According to Section 63 of the BNS, there is a notable exception to the definition of rape. Specifically, this section provides immunity to husbands, stating that sexual intercourse or sexual acts between a man and his own wife shall not be considered rape. In essence, this provision explicitly excludes marital rape from the purview of Section 63, sparking important discussions on women's rights, consent, and the legal framework surrounding marital relationships.

The Atul Subhash case further complicates the issue by highlighting concerns about the potential misuse of laws in marital disputes. While protecting victims is crucial, there is also a need to ensure that laws are not weaponised in personal vendettas. Striking a balance between preventing misuse and safeguarding genuine victims is essential.

To ensure justice and fairness, the law must address these inconsistencies and challenges. Reforms are necessary to harmonise these sections, ensuring that the law is consistent, equitable, and capable of addressing the complexities of marital relationships while preventing misuse.

This case serves as a stark reminder of the need for legal reforms that balance the rights of the accused with the imperative to protect victims, ensuring that justice is both fair and accessible, particularly for those vulnerable to abuse within intimate relationships.

(Tahini Bhushan is partner at Tatvika Legal, a full-service law firm based out of Delhi-NCR. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)