The Chhattisgarh High Court has ruled that the act of a husband having unnatural sex with his adult wife even without her consent does not constitute an offence of rape under Section 376 or unnatural sex under Section 377.
In a ruling delivered Monday, the High Court held the consent of the wife in sexual intercourse and unnatural intercourse as insignificant, a single judge bench of Justice Narendra Kumar Vyas said: "...It is quite vivid, that if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance, therefore, this Court is of the considered opinion that the offence under Section 376 and 377 of the IPC against the appellant is not made out.”
The case stems from an incident on December 11, 2017, where the appellant allegedly committed unnatural sex with his wife against her will. According to Live Law, it was alleged that the appellant "inserted his hand in the 'anus' of the victim due to which the victim complained pain and subsequently, she was admitted to Hospital for treatment".
The wife died on the same day. An FIR was registered against the appellant under Section 377 (unnatural sex) of the Indian Penal Code. The dying declaration of the victim was recorded by an Executive Magistrate where the victim made a statement that due to forceful sexual intercourse by her husband, she became ill.
The appellant was convicted for offences under Section 377, Section 376 and Section 304 (culpable homicide not amounting to murder) and sentenced to rigorous imprisonment for 10 years by the trial court. The appellant then moved the High Court against the trial court verdict.
While hearing the case, the High Court laid down two fundamental questions to be answered by the Court. The first was to determine if offences under Sections 376 and 377 of the IPC are attracted when the accused and the victim were husband and wife.
The second question pertained to whether offence under Section 304, IPC is attracted in the present case.
"From perusal of Section 375, 376 and 377 IPC it is quite vivid that in view of amended definition of Section 375 IPC, offence under Section 377 IPC between husband and wife has no place and, as such rape cannot be made out," the court observed.
The court pointed to Exception 2 to Section 375 to hold that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape and therefore, if any unnatural sex as defined under Section 377 is committed by the husband with his major wife, then it cannot also be treated as an offence.
Notably, the Supreme Court had in 2017 struck down Exception 2 to Section 375 IPC to the extent that it stopped providing a husband any immunity from prosecution for sexual intercourse or sexual acts with his own wife, if she was between 15 and 18 years of age. Petitions challenging the exception and seeking criminalization of non-consensual sexual intercourse (marital rape) are pending before the Supreme Court for hearing.
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