Under sections 375 (1) and (2), “wish” and “consent” of a woman are important, but an exception says that it is not a crime if the accused is married to her.
Last week, the Chhattisgarh High Court acquitted a man of marital rape and ruled that sexual intercourse between a legally wedded man and a woman does not amount to rape even if it is by force or against the wishes of the wife. Justice NK Chandrawanshi cited an exception in the IPC section 375 which noted that sexual offence by a man with his wife does not amount to rape as long as the woman is above the age of 15.
In this case, the complainant is the legally wedded wife of the accused therefore sexual intercourse or any sexual act with her by the husband would not amount to rape, the court observed. It instead found the husband guilty under section 377 for unnatural intercourse. The section has been struck down by the Supreme Court concerning gay relationships.
The couple hails from Bemetera near Bilaspur. The wife had also accused the husband under sections 377 and 498A. The court agreed with a cold reading of section 375 which deals with rape but excludes marital rape as an exception to the six circumstances of rape listed in it. In the modern interpretation of rape, several countries have opted to treat forceful sex with a wife against her wish as rape.
Kerala High Court had recently taken a cue from the same progressive thinking and passed a landmark judgment acknowledging a woman’s autonomous and individual right in a marriage. The bench comprising Justice Mohammad Mushtaq and Justice Kauser Edappagath delivered the order on July 30 while hearing the woman’s petition seeking a divorce from her husband on similar grounds. The judges had concurred that unnatural intercourse against the wife’s consent was “marital rape, albeit it was punishable undergrounds of cruelty and harassment”.
There have been elaborate discussions on the topic of marital rape in Indian courts. CJI Bobde had gone so far as to suggest “that a woman can not deny sex to her lawfully wedded husband”. The problem with random quoting of court orders is that they sometimes lose their context. Denial of sex to her husband can be a legal ground for divorce because after all marriages are meant for procreation and other pleasures. But a cold reading of sections can sometimes also lead to conclusions that require a deeper understanding of the changing society.
Under sections 375 (1) and (2) “wish” and “consent” of any woman are important. A crime is said to have been committed if the woman has not consented or is against her wish. But the exception says that it is not a crime if the accused is married to the woman. About 30 years ago, the British High Court had dismissed the exception of 375 as “fiction in law” and punished the husband who claimed that marriage was an irrevocable license for physical intimacy. British courts have since maintained the same position. It’s about time our courts woke up.
