AHMEDABAD: The Gujarat
HC ruled on Monday that a wife cannot charge her husband with marital
rape even if the man has sex with her without her consent if she is above 18 years of age.
Justice J B Pardiwala observed that the offence of rape by a husband is not an offence punishable under
IPC Section 375, which defines rape. He lamented the position of a law which does not enable a woman to prosecute her husband for rape and called for legal provisions so that a woman can protect her body the way she has been enabled to protect her other rights.
The HC quoted, in great detail, legal provisions existing in countries across the world on
marital rape and observed that the legislature must criminalise the offence. He said the mere apprehension of its misuse by "unscrupulous" women should not be a deterrent to enacting legislation to protect women battered by marital rape, which is rampant in India. The HC said a wife can initiate criminal proceedings against her husband for unnatural sex under IPC Section 377. Consent is not a determining criterion in such a case. Any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under IPC Sec 377.
However, in a marital relationship, "except the sexual perversions of sodomy, buggery and bestiality, all other sexual perversions would not fall within the sweep of Sec 377 of the IPC", the HC said and observed that the charge of forced oral sex levelled by the woman in this case would not attract the charge of sodomy. The HC added that forcing a wife to have sex would attract the charge of outraging the modesty of woman under IPC Sec 354.
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