Unnatural Sex By Husband Without Wife's Consent Not An Offence, Says Chhattisgarh High Court

The Chhattisgarh High Court acquitted a man convicted of rape and culpable homicide after his wife allegedly died after unnatural sex.

Chhattisgarh High Court said that unnatural sex by husband without wife's consent is not an offence.

Source : ABPLIVE AI

Sexual intercourse, including unnatural act by a man with his adult wife, even without her consent does not merit punishment, the Chhattisgarh High Court held in a recent judgment, acquitting a man from Jagdalpur who was convicted of rape and other charges after his wife died in hospital after unnatural sex.

"If the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape as such absence of consent of wife for unnatural act loses its importance," the single bench judge noted.

"The offence between husband and wife cannot be made out under Section 375 IPC as per the repeal made by way of amendment and in view of repugnancy between both the sections," the judgment read further.

Justice Narendra Kumar Vyas made the observations while pronouncing judgement in the case where the man was charged under IPC sections 376 (rape), 377 (unnatural sex), and 304 (culpable homicide not amounting to murder) after the death of his wife. He was arrested in 2017 and convicted by a trial court in Bastar district.

On December 11, 2017, the woman had complained of pain and told her family that her husband allegedly committed unnatural sex with her against her will. In her dying declaration, which she recorded before the magistrate, she said that she had become ill due to forceful sexual intercourse by her husband. Following this, the Additional Sessions Judge at Jagdalpur convicted the man on February 11, 2019.

The man then approached the HC in Bilaspur challenging the judgement by the lower court. He submitted that there was no legally admissible evidence on record against the appellant and that the decision was taken on the basis of the victim's statement. 

He contended that the trial court did not consider the statements by two witnesses who said that the woman was suffering from piles after her first delivery due to which she used to experience abdominal pain and bleeding.

The HC, in its order, stated that offence under Section 377 IPC between husband and wife has no place and, as such rape cannot be made out.

It further mentioned that the amendment in section 375 of the IPC in 2013 provides an exception that sexual intercourse or sexual acts by a man with his wife is not rape, adding that if unnatural sex, as defined under section 377 is committed, it cannot also be treated to be an offence.

"It is quite vivid that Section 377 (unnatural sex) is not well equipped and offender is not defined therein but body parts are well defined, which are also included in Section 375 ( carnal intercourse against the order of nature)," the HC observed.

The government maintains that protection of marriage is important and that there is no need to criminalise marital rape. So it is not within the court's purview to take a decision on the matter.

(With inputs from news agency PTI)