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Marital Rape Is A Disgraceful Offence That Has Scarred The Trust & Confidence In The Institution Of Marriage: Gujarat HC [Read Order]

High Court is set to examine the question whether a wife can initiate prosecution against her husband for unnatural sex punishable under Section 377 of the Indian Penal Code

Terming marital rape as a ‘disgraceful offence’, the Gujarat High Court is set to examine the question whether a wife can initiate prosecution against her husband for unnatural sex punishable under Section 377 of the Indian Penal Code.

“Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice”

“Marital rape refers to “unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent.” It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually”

In an interim order issued in a plea by a man seeking quashing of complaint, issuing notice to the complainant wife, Justice JB Pardiwala listed the questions the court proposes to consider. The questions, apart from the one mentioned above, are:

  • If the husband forces his wife to indulge in oral sex, whether the same would constitute an offence under Section 377 of the IPC?
  • If the husband compels his wife to indulge in oral sex, whether the same would constitute an offence of cruelty within the meaning of Section 498-A of the IPC?
  • Whether forcing a wife by the husband to indulge in oral sex would amount to rape punishable under Section 376 of the IPC?

The court observed that following three kinds of marital rape were prevalent in the society:

  • Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship in many ways. Some instances are those where the wife is battered during the sexual violence, or the rape may follow a physical violent episode where the husband wants to make up and coerces his wife to have sex against her will. In most cases, the victims fall under this stated category.
  • Force only rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. In such cases, battering may not be a characteristic and women who refuse sexual intercourse usually face such assaults.
  • Obsessive rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. This type has also been labelled as sadistic rape.

Recently, the Supreme Court had held that sexual intercourse with minor (below 18 years) wife is rape. The Delhi High Court is currently hearing pleas challenging marital rape and senior counsel Raju Ramachandran was appointed as amicus curiae.

Read the Order Here

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  • […] The Gujarat High Court as recently as in November 2017 stated that Marital rape is a “disgraceful offense”, and not criminalizing it has made “a large population of women” suffer. The bench made the statement while hearing a plea by a man who sought to have his wife’s case against him for forced oral sex quashed because they were married. It is pertinent to note, that oral sex is a violation of Section 377 of Indian Penal Code. […]

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