Marital rape is not a criminal offence yet, but it should be: Gujarat HC

The woman is quoted to have said that the judgement on the marital rape case has 'opened a way' for Muslims to be prosecuted as per the law

The Gujarat High Court on Monday ruled that marital rape is not a criminal offence under Section 375 of the Indian Penal Code. As such, a man can't be prosecuted to have raped his wife. The High Court, however, underlined the importance of criminalising it, saying the "destructive attitude" that promotes rape in a marriage can be removed only by making marital rape "illegal". 

Justice Pardiwala, however, said that a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the IPC. Subjecting his married partner to have oral or unnatural sex was akin to cruelty, the judge concluded.

Quoting and citing previous judgments, the court observed that though a husband had the right to have sex with his legally wedded wife, she was not his property and it should not be without her consent.

However, Justice Pardiwala cited Section 375 of the IPC as an exception: “(A man is said to have committed rape) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.”

The court also observed that demanding dowry or harassing someone for it too amounted to a crime.

Justice J B Pardiwala made these observations in a case pertaining to a lady doctor's complaint of rape and physical harassment against her husband, who too happens to be a medical professional.

The High Court directed the police to instead book the doctor under Sections 354 (sexual harassment) and 498 (A) (husband and relative subjecting a woman to cruelty) after his wife, also a doctor, told the court that he was subjecting her to mental and physical torture and forcing her to have oral sex.

Justice Pardiwala refused to hand over the case investigation to agencies like the CID or the CBI and ordered the continuation of hearing on the complaint of the lady doctor. It also rejected the complaint against the parents of her husband filed by the complainant.

According to local daily Ahmedabad Mirror, the judge added, “Such an action raises moral boundaries that informs the society that a punishment results if the boundary is transgressed. The husbands may then begin to recognise that marital rape is wrong.”