Forced unnatural sex with wife without her consent not offence – Indian High Court rules after man sodomised his wife to death

Unnatural sex between a man and his adult wife does not merit punishment, the Chhattisgarh High Court in India said in a recent judgment. 

The judgement was delivered by Justice Narendra Kumar Vyas, a Times of India report stated.

The case involves a 40-year-old man whose wife died in hospital after unnatural sex. 

The doctor said she had peritonitis and rectal perforation. 

The man was arrested in 2017 and later convicted by a trial court in Bastar district under IPC Sections 376 (rape), 377 (unnatural sex), and 304 (culpable homicide not amounting to murder) following his wife’s d3ath. 

The prosecution stated that the woman had complained of pain and informed her family that her husband had engaged in unnatural sex against her will. 

Her dying declaration, recorded before an executive magistrate, stated that she became ill due to “forceful sexual intercourse” by her husband. 

Marital rape is not punishable by law in India. The High Court judgment now leaves unnatural sex out of the ambit of punishment as well. 
 

Accused of unnatural sex and culpable homicide not amounting to murder, the man was convicted by a trial court, but got relief from the High Court. 

In its judgment, the court said if the wife is more than 15 years old, “any sexual intercourse” or sexual act by the husband cannot be termed as rape under any circumstance and as such, the absence of the wife’s consent for an unnatural act loses significance.

So offences under Sections 376 and 377 of IPC against the appellant cannot be made.

“The offence between husband and wife cannot be made out under Section 375 IPC as per the repeal made by way of amendment and in view of repugnancy between both the sections,” the judgment read.
 

The Supreme Court was hearing a clutch of petitions seeking criminalisation of marital r3pe but the hearing got suspended as then Chief Justice of India DY Chandrachud who headed the bench was about to retire. 

A new bench is expected to hear the matter.

The Centre maintains that protection of the institution of marriage is essential and there is no need to criminalise marital rape. So it is not within the court’s purview to take a decision on the matter.

During the hearing, the government also maintained that parliament has provided several measures to protect the consent of a married woman within marriage.