Sexual intercourse with wife not rape even if done by force or against her wish: Chhattisgarh High Court


Bilaspur: The Chhattisgarh High Court has discharged a 37-year-old man in a rape case filed against him by his wife after observing that sexual intercourse or any sexual act with a legally wedded wife is not rape even if done by force or against her wish.

However, the HC did not grant any relief to the man who was also charged under IPC section 377 (unnatural offences). Justice NK Chandravanshi delivered the judgement on August 23 in a criminal revision plea filed by the man and his two family members, seeking to quash rape charge (against him) and other offences framed against them, their lawyer YC Sharma said on Thursday. As per the order, the victim married the man, a native of Changorabhata in Raipur, in 2017. After a few days of marriage, the woman’s husband and her two in-laws allegedly started harassing her for dowry. The woman later lodged a complaint at the Bemetara police station of Bemetara district against the three.

After investigation, a charge-sheet under section 498-A (dowry harassment), 377 (unnatural offences), 376 (rape), 34 (common intention) of the IPC was filed against them. After providing opportunity of hearing to counsels of both the parties, a trial court had framed charges against the applicants under these sections, the order said.

The trio, including woman’s husband, approached the High Court seeking to set aside the order of the trial court and discharge them from the charges, including that of rape against him. “Counsel for the applicants submits that the complainant and the applicant No. 1 (man) are legally wedded wife and husband, therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the IPC are spelt out against him, 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 IPC,” the HC said.

The counsel had prayed that the impugned order be set aside and the applicants be discharged from charges brought against them, it said. After hearing, the HC had reserved its order on August 13 and it was delivered on Monday (August 23). The order said, “Exception II of Section 375 of the IPC, 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.”

The judge said charge under IPC section 376 (rape) against the man was erroneous and illegal. “In this case, complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish.Therefore, charge under Section 376 of the IPC framed against the husband is erroneous and illegal. Hence, he is entitled to be discharged from the charge under Section 376 of the IPC”, it said.

“In the instant case, the complainant has reported that the husband has many times, without her consent, made unnatural physical relation with her. Therefore, I do not find any infirmity or illegality committed by learned trial court in framing the charge under Section 377 of the IPC against the husband,” the HC said. The HC said no illegality has been committed in framing other charges against the accused. “Consequently, the instant revision is partly allowed. The applicant No. 1 (husband) is discharged from the charge framed against him under Section 376 of the I.P.C. This Court finds that trial Court has not committed any illegality in framing the charge under Section 377 and 498-A/34 of the IPC against all the applicants, it added.

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