LI Network
Published on: December 11, 2023 at 14:59 IST
The Allahabad High Court has stirred controversy by asserting that a man cannot be charged with marital rape if his wife is 18 years of age or older. The court acquitted a man accused of “unnatural sex” with his wife, citing the “protection of a person” from such charges when the wife is 18 or above.
Justice Ram Manohar Narayan Mishra, presiding over the case, referred to the Supreme Court’s judgment in the Independent Thought Vs Union of India (2017) case, which deemed sexual intercourse between a man and his wife aged between 15 to 18 years as rape.
Justice Mishra observed that the “protection from marital rape still continues in the case where the wife is of 18 years of age or more.”
The case involved the husband being charged under section 377 of the Indian Penal Code (IPC) for alleged “unnatural sex.”
Justice Mishra noted that the ingredients of unnatural sex under Section 377 IPC were included in Section 375 (a) IPC, as stated by the High Court of Madhya Pradesh.
The Madhya Pradesh High Court opined that Section 375 IPC covers all forms of penetration, and when consent is immaterial, Section 377 IPC is not applicable to sexual acts between husband and wife.
Justice Mishra, while partially allowing a revision petition, highlighted that the proposed Bhartiya Nyay Sanhita, which is expected to replace the Indian Penal Code, does not include a provision similar to Section 377 IPC.
Despite the acquittal in the marital rape charge, the court upheld the man’s conviction and sentence under sections 498A (harassment for dowry) and 323 of the Indian Penal Code. The case originated in 2013 in Ghaziabad, where the man faced charges under multiple sections, leading to his conviction.
The court acknowledged the absence of a criminal penalty for marital rape when the wife is 18 or above, pending any decision on petitions seeking to criminalize marital rape before the Supreme Court.
