New Delhi:

Unnatural sex between a man and his adult wife does not merit punishment, the Chhattisgarh High Court said in a recent judgment. The case involves a man whose wife died in hospital after unnatural sex. The doctor said she had peritonitis and rectal perforation. 

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, he 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, absence of wife’s consent for unnatural act loses significance. 

So offences under Section 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 rape 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.

New Delhi:

The Centre has told the Supreme Court there is no need to criminalise marital rape as there are other “suitably designed punitive measures”. The Centre said it is not within the jurisdiction of the Supreme Court to criminalise marital rape.

The Centre said the issue of marital rape is a more social issue than a legal one, as it will have a direct effect on society.

This issue (marital rape) cannot be decided without proper consultation with all stakeholders or without taking into account the views of all states, the Centre said.

While the Centre accepted that marriage does not end the consent of a woman and any violation should result in penal consequences, it, however, added the consequences of such violation within a marriage are different from violation outside marriage.

READ | A Chronology Of Marital Rape Exception Under Indian Law

In a marriage, there is a continuing expectation of proper sexual relations from one’s spouse, but such expectations do not give a husband the right to force his wife to have sex against her will. The Centre said punishing a person under anti-rape laws for such an act may be excessive and disproportionate.

Parliament has already provided measures to protect the consent of a married woman within marriage. These measures include laws penalising cruelty to married women, the Centre said. The Protection of Women from Domestic Violence Act, 2005 is another law that can help married women.

The sexual aspect is only one of the many aspects of the relationship between a husband and wife on which the foundation of their marriage rests, and given the nature of the institution of marriage in India’s socio-legal milieu, if the legislature is of the view that the protection of the institution of marriage is essential, then it would not be appropriate for the court to strike down the exception,” the Centre said.