Published on: May 03, 2024 20:48 IST
Hon’ble Madhya Pradesh High Court has clarified that ‘marital rape’ is not recognized as an offence in India. The court observed that any sexual intercourse, including unnatural sex, by a man with his wife does not amount to rape, as the wife’s consent is considered immaterial in such cases.
Justice Gurpal Singh Ahluwalia, in a bench ruling, stated that as long as a wife is residing with her husband during a valid marriage, any sexual act by the husband with his wife not below the age of fifteen years will not be considered rape. The court further added that the insertion of the penis in the anus of a woman is included in the definition of ‘rape,’ but in the case of a husband and wife, the absence of the wife’s consent for unnatural acts loses its significance.
The court clarified that the only exception to this ruling is under Section 376-B of the Indian Penal Code (IPC), where sexual acts with a wife during separate living due to judicial separation or otherwise would be considered rape. Referring to Exception 2 of Section 375 IPC, the court noted that sexual intercourse between a husband and a wife, when the wife is not under fifteen years of age, will not be considered rape.
The court made these observations while quashing an FIR against Manish Sahu, filed by his wife alleging unnatural offence under Section 377 IPC. It is noteworthy that as per Section 375 IPC, rape includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 IPC excludes sexual intercourse between a husband and a wife aged over 15 years from the definition of rape, preventing such acts from prosecution.
In a related development, the Supreme Court in October 2017, in the Independent Thought vs. Union of India judgment, modified the age limit in Exception 2 to Section 375 IPC from ’15 years’ to ’18 years’ to include sex with a minor wife within the ambit of the rape offence.
The case involved a wife lodging an FIR against her husband for committing unnatural sex with her. The husband challenged the FIR, arguing that any unnatural sex between them is not an offence under Section 377 IPC since they are husband and wife. The High Court, after examining the relevant sections, concluded that such acts between a husband and wife do not constitute an offence under Section 377 IPC and quashed the FIR against the husband.