Sexual intercourse or any sexual act by husband not rape even if by force, says Chhattisgarh HC

The Chhattisgarh HC on August 26 discharged a man accused of the charges of marital rape by ruling that sexual intercourse between legally wedded man and woman is not rape even if it is by force or against the wishes of the wife.

Relying on Exception II of Section 375 of the IPC, Justice N.K. Chandravanshi said, "...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 intercourse or any 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."

However, the HC ordered that charges be framed against the man under Section 377 of IPC for his act of making unnatural physical relations with his wife, LiveLaw has reported.

It also said in its order that, "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 I.P.C. cannot be aid to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the I.P.C. 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, such

act would constitute as a carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the IPC."

The wife had accused that after some days of marriage, the in-laws started harassing her for dowry and committed physical violence with her.

According to the Live Law report, the specific allegations that were made against the husband were that he had made unnatural physical relation with her by inserting fingers and radish in her vagina, despite her protest.

A criminal revision was preferred against a Sessions Court order which had framed charges under 498-A, 34, 376 and 377 against the husband and sec. 498A against in laws on a complaint was registered by the wife.

In contrast, the Kerala High Court on August 6 had said in a major judgement that if the husband’s sexual behaviour disregard the autonomy of his wife, it counts as marital rape and was a valid ground for divorce.