High Courts in India often differ on the legality and definition of marital rape. The latest decision by the Chhattisgarh High Court adds to the legal impasse, with the Bilaspur court saying sexual intercourse by a man with his own wife is not rape—even if it is by force or against her wish.
While hearing a criminal revision plea filed by a man facing trial for raping his wife, Justice N.K. Chandravanshi discharged him of the charge of rape (Section 376), but upheld charges under Sections 377 (unnatural offences), 498A (husband or relative of husband of a woman subjecting her to cruelty), and 34 (Acts done by several persons in furtherance of common intention).
As per the complainant, the man started harassing his wife for dowry within days of getting married, and would abuse her. “The...husband many times had made unnatural physical relation with her. He also inserted his fingers and radish in her vagina, despite her protest,” the CAV order read.
“Learned counsel for the applicants submits that the complainant and the applicant No. 1 are legally wedded wife and husband, therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the I.P.C. are spelt out against applicant No. 1, because, in India, marital rape is not recognized and the same is not an offence in view of Exception II of Section 375 of the I.P.C,” Justice Chandravanshi noted.
“Exception II of Section 375 of the I.P.C. referred to above, makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In this case, complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish”
As per Section 375, forced intercourse is only considered as rape if the wife is below the age of 15.
While charges may still proceed against the husband, the case does not help the still-unclarified definition of marital rape.
Earlier this month, the Kerala High Court has ruled that marital rape, though not recognised under the penal code, could still be considered grounds for divorce as a form of cruelty. However, it said that "Treating wife's body as something owing to husband and committing sexual act against her will is nothing but marital rape”.
In 2018, the Gujarat High Court ruled that non-consensual intercourse by a husband would not be dubbed rape, though subjecting his married partner to have oral or unnatural sex was akin to cruelty. That year, the Delhi High Court observed that both man and woman had a right to say “no” to physical relations and that marriage did not mean that “the woman is all time ready, willing and consenting…the man will have to prove that she was a consenting party”.