The Chhattisgarh High Court has ruled that copulation by a husband with his legally wedded wife, even if by force and against her wish, does not amount to rape. The court made the remarks while discharging a man accused of marital rape. The High Court, however, ordered that charges be framed against the accused under Section 377 of IPC for his act of making unnatural physical relations with his wife, LiveLaw reported.
In his judgement relying on Exception II of Section 375, Justice NK Chandravanshi said that if the wife is not a minor, then sexual intercourse by the husband ‘would not constitute an offence of rape, even if it was by force’.
The court also observed that charges framed under Section 377 cannot be said to be erroneous ‘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’. The order said that such an act would constitute carnal intercourse against the order of nature and would attract offence under Section 377.
The court preferred a criminal revision of an order by the Sessions Court which had framed charges under 498-A, 34, 376 and 377 against the husband and Section 498A against in-laws on the complaint of the woman. She had alleged that their in-laws had harassed her and committed physical violence while demanding dowry. She also alleged that her husband made unnatural forced physical relations with her.
The High Court noted that none of the ingredients constituted an offence punishable under Sections 376 and 377 of IPC in India as marital rape is not recognised in the country and the same is not an offence in view of Exception II of Section 375. The court relied on the judgment of the Gujarat High Court in the Nimeshbhai Bharatbhai Desai vs State case.
The High Court relied on the Momina Begum vs Union of India case judgement by the Gauhati High Court while framing charges against the husband under Section 377. In this case, the Gauhati HC had observed that if the dominant intention of the offender is to derive sexual satisfaction unnaturally, such act of the offender would attract the offence.
