Chhattisgarh High Court declares non-consensual sexual intercourse between husband and wife is not a criminal offense

Order of the Addl. Sessions Judge, Bemetara, Distt. Bemetara which framed charges of Sections 498-A, 34, 376 and 377 against Dilip Pandey and others was challenged in the High Court of CHHATTISGARH. According to the brief facts of the case, the applicant and original complainant were married and after a few days of marriage, the applicant was said to have demanded dowry from the wife and also had subjected her to cruelty. The Complainants also states that the husband (applicant) forced physical relations on the wife and further also forced her into unnatural sexual intercourse. Following this, written complaint was filed against the applicants in Bemetara Police Station and a charge sheet under Section 498-A, 377, 376, 34 of the I.P.C. was filed against the applicants. The court framed charges against the applicants and hence aggrieved by this they approached the High Court of CHHATTISGARH. 

The Applicants argued that S.376 which provides for Punishment for Rape is not a valid charge on the applicant since the applicant was lawfully married to his wife and u/s 375 which defines rape and its exceptions, there is no provision which make marital rape a crime. Hence, even if the sexual intercourse was without consent, it would not constitute as rape. The High Court agreeing with this argument stated that since the couple was lawfully married and the wife was above 18 years, the charges of rap would not be valid.

As for the charge of S. 377, it was argued by the applicants’ counsel that the element of ‘voluntarily’ carnal intercourse is an important element and since that was not present, S. 377 does not apply either. The High Court disregarded this argument and held that the wife repeatedly mentioned that the applicant (husband) had unnatural sex with her using his fingers and radish which she was ashamed to admit earlier and hence, the court held that this charge would not be invalidated. 

The court also held that he charges of S.498-A against the applicant was also not invalid. In the explanation the High Court mentioned that statements of the complainant show that after few days of marriage, the wife was subjected to cruelty by all the applicants by abusing her and demanding dowry, the statement of the neighbours also verified these facts. 

In conclusion, it can be stated that Marital Rape is still not recognised as an offence in India, and non-consensual sexual intercourse between husband and wife is not a criminal offense.

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