Non-consensual marital sex
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Monday, 2nd April 2018 marked an important day towards women’s emancipation when Gujarat High Court declared that marital rape is an intolerable cruelty towards women. A Single Bench judge of the High Court, Justice JB Pardiwala ruled that non-consensual sex between a married couple does not constitute rape if the woman is above 18 years old. But, Justice Pardiwala also commented that “marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalised.”

The facts of the case relate to the filing of the FIR by a lady doctor against her husband with the Idar Police Station in Sabarkantha district. She alleged that her husband had subjected her to non-consensual and unnatural sexual acts. She also complained about being harassed over dowry and stated that the police did not cooperate with her when she went to them. She requested the Court that her case is transferred to the CID or CBI for proper investigations.

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The husband of the petitioner moved to Gujarat High Court to squash her petition of marital rape.

Points of contention

The main points of contention that were raised in this case were two.

  • Whether wife’s non-consent during sexual act has any legal basis for the husband.
  • Whether or not forceful oral sex would fall within the ambit of Section 377 which deals with unnatural sexual acts.

After the decision of the Supreme Court that sex with a girl below 18 years of age is rape even amongst married couples; this decision of the Gujarat High Court tantamount to a win for women’s rights groups as Justice Pardiwala observed marital rape is an issue that needs to be taken seriously as it dehumanises women and statutory measures that call for its abolition should be put into effect immediately.

The decision of the Court

Justice Pardiwala after going through the petition ruled in favour of petitioner-husband stating that although non-consensual but sexual acts between legally adult married couples could not be considered as rape as there is no such provision mentioned under Section 375 IPC and hence it is not a criminal act albeit it is a cruelty towards the wife. The Court further observed that her case need not be transferred to the CID or CBI for proper investigations and reiterated that police investigations should continue to help resolve the matter.

The Court, however, refused to quash the dowry harassment allegations and directed the DSP of Himmatnagar to look into her complaint regarding police non-cooperation and redress her grievances on such issues. The parents of petitioner-husband were also excused from the case as the Court stated that it is a case involving a married couple where in-laws had no particular roles.

On charges of forceful oral sex, the Court explained that the wife can file charges under Section 377 IPC but opined that “except the sexual perversions of sodomy, buggery and bestiality, all other sexual perversions would not fall within the sweep of Sec 377 of the IPC.” She, however, can file charges under Section 354 (outraging women’s modesty) according to Justice Pardiwala.

This marks a change in our justice system where for the first time marital rape is considered a cruelty and Justice Pardiwala further categorised the various forms of marital rape. The decision of the Gujarat High Court ushers a positive change in attitude towards equality (Article 14) as envisioned in our Constitution.

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