Intimacy Though Normal Between Married Couples Must Be Consensual; Unconsesual Sex With Spouse Causes Trauma: Gujarat High Court
The Gujarat High Court has held that while marriage is seen as automatic grant of sexual consent and intimacy between married couples is normal however, it has to be consensual and mutually respectful, recognizing bodily freedom of spouse within marital relationship. In doing so the court rejected the anticipatory bail plea of a man who was accused by his wife of sexual assault and...
The Gujarat High Court has held that while marriage is seen as automatic grant of sexual consent and intimacy between married couples is normal however, it has to be consensual and mutually respectful, recognizing bodily freedom of spouse within marital relationship.
In doing so the court rejected the anticipatory bail plea of a man who was accused by his wife of sexual assault and having unnatural sex as well as physical and mental assault.
Justice DA Joshi in his order said:
"No doubt, marriage has been seen as an automatic grant of sexual consent since decades, however, the modern legal frameworks increasingly recognize the bodily freedom of an individual, even within a marital relationship. Intimacy is normal between every married couples, however, the same has to be a consensual and mutually respectful act. Having an unnatural sex by any spouse against the will and wish of other partner not only causes immense physical pain but it also gives mental, and emotional trauma to the unconsented spouse. We do understand that no women in our civilised and cultured society would come forward and confront such sensitive issues in public until the level of such harassment and abuse goes beyond her tolerance".
The court said that the record indisputably further revealed that the petitioner's marriage to the complainant was his second marriage and his first wife had made similar allegations against him which shows that the he is a repeat offender and is habitual in doing such kind of acts.
The court was hearing a man's plea seeking anticipatory bail in connection with a dowry demand FIR, wherein it was alleged that he along with his father and mother had taken the complainant wife into confidence after which petitioner and complainant got married.
However soon after the marriage, all the accused persons started demanding dowry from the complainant. It was alleged that the petitioner and his father were physically abusing the complainant against her will and making unreasonable demands.
It was alleged that she was subjected her to mental and physical harassment, and ultimately all the accused persons, acting in concert had thrown her out from her matrimonial home on 20.04.2025.
The court noted that the dispute appeared to be matrimonial in nature however in the FIR serious allegations of mental and physical assault have been made by the complainant against the applicant and his parents; thus the dispute was not a general matrimonial dispute but beyond it.
It said, "Very grave and serious allegations of giving burn on the private part of the complainant with the lit cigarretes are made in the body of the FIR against the present applicant. Not only that, learned counsel for the complainant has placed on record certain WhatsApp chats between the complainant and the applicant, wherein very abusive language has been used by the applicant towards the complainant, which clearly shows the mentality of the applicant and his aggressive nature. The allegations of having unnatural sex by the applicant with the complainant are also there in the body of the FIR. Thus, from the allegations made in the FIR, as well as the facts narrated by the complainant and other witnesses in their statements, it appears that the present case is not a simple case of matrimonial dispute. It prima facie seems to be something beyond the general and usual allegations stated to be being made in every matrimonial disputes by the wife"
Thus referring to judgments on factors to be considered while granting anticipatory bail the court noted that in the present case, from the allegations levelled in the FIR and the materials placed on record, it appeared that "very serious allegations have been made against the applicant" observing that custodial interrogation of the applicant is "very much necessary".
The court said that while deciding anticipatory bail application, it is the duty of the Court to see seriousness of the offence, prima facie case and interest of the society at a large.
"Therefore, when no special and compelling circumstances are made out and no case of false implication of present applicant in the alleged o9ence is made out before this Court, I am of the opinion that this Court should refrain itself from exercising its discretionary powers in favour of the present applicant at this stage. In view of above discussion and considering the materials produced before this Court, I am of the opinion that there seems to be a prima facie involvement of the present applicant in the commission of the alleged offence,"the court said
The court said that granting anticipatory bail to petitioner is likely to hamper the investigation and investigating agency is likely to lose an opportunity to exploit all the fact situation, probabilities or opportunities which the Agency may get during the custodial interrogation of a person.
It dismissed the plea.
Case title: X v/s State of Gujarat
R/CR.MA/26922/2025
Counsel for petitioner: Senior advocate Yatin Oza, advocates Aditya A Gupta, Sudhir Walia, Harshal Baradia and Neeharika Walia
Counsel for complainant: Senior advocate Jal Unwalla, advocate Bomi H Sethna
Counsel for State: Additional Public Prosecutor Soham Joshi