Forced Sexual Intercourse by Husband Not a Crime: Chhattisgarh High Court

The Chhattisgarh High Court on Thursday, 26 August, granted bail to a man who was accused of marital rape by stating that "sexual intercourse or any sexual act between a husband and his legally married wife, even if it was by force or against their will, did not constitute as rape", reported LiveLaw.

The man has been acquitted, charges against him have been filed under Section 377 of IPC. After the court observed that his unnatural physical relationship with his wife caused the aforementioned crime.

The Court's Statement

Justice NK Chandravanshi, who gave the judgment mentioned that "sexual intercourse" with your wife if she's above the age of 18 is not rape.

During the hearing he stated 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. In this case, complainant is legally wedded wife of applicant No. 1, therefore, 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."

He further added, "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 IPC cannot be said to be erroneous at the stage of framing of charge, especially in terms of Section 377 of the IPC where dominant intention of the offender is to derive unnatural sexual satisfaction..."

Charges Filed by the Woman

According to the sources, despite the woman's protest, the husband inserted fingers and radish in her vagina.

The woman has also accused the husband and her in-laws of harassing her for dowry and for physically abusing her.

After the court preferred a criminal revision of the order by the Sessions Court that had filed charges under 498-A, 34, 376, and 377 against the husband, reported LiveLaw.

498A was registered by the wife on the in-laws as she claimed that after a few days of marriage, she was harassed by the family physically and asked for dowry.

The Court's Judgment

According to Section 376 and 377 of the Indian Penal Code, none of these elements come under punishable offense as the country does not recognise marital rape. It is not a crime in view of Exception II of article 375, the high court stated.

The court further said that the judgment was given keeping in mind the case of Gujarat High Court in Nimeshbhai Bharatbhai Desai vs the state of Gujarat and stated:

"Therefore, charge under Section 376 of the IPC 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 IPC."

For framing charges against the husband under Section 377, the high court relied on the Momina Begum vs Union of India case judgment by the Gauhati High Court, where the court said that the offender would attract offence if the prime intention of the offender is to derive sexual pleasure or satisfaction unnaturally.

The court stated, "Therefore, I do not find any infirmity or illegality committed by learned trial court in framing the charge under Section 377 of the IPC against applicant No. 1/husband."

Therefore, the man was acquitted by the court under Section 376 of the IPC but has filed the charges under Section 377, 498A, and 34 of IPC.

'Rape is Rape' Twitter Reacts

A lot of people took to Twitter and called out the Chhattisgarh High Court for such a judgment.

Public Interest Lawyer and Activist, Prashant Bhushan also took to Twitter to criticise the judgment and called it "ridiculous".

How Does Law Define Rape?

According to Section 375 of the Indian Penal Code, rape is defined as "sexual intercourse with a woman without her consent/against her will".

The sexual intercouse is considered rape only under following cases:

1. If it's against her will.

2. If it's without her consent.

3. If the consent is obatined by putting someone she is interested in danger.

4. If her consent is obtained when the man is aware that he is not her husband and she gives consent because she trusts or believes that he is another man who she has given consent to or is legally married to her.

5. If the consent is obtained when she's intoxicated or unconscious.

6. If her consent is given or not and she's below 16 years of age.

But it makes an exception when it comes to marital rape, stating "sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape".

(With inputs from LiveLaw)