Non-consensual sex with wife not rape: Gujarat HC

The court made these observations in a case related to a complaint filed by a lady doctor of rape and physical harassment against her husband, who too happens to be a medical professional. DH file photo

The Gujarat High Court on Monday observed that husband having sexual intercourse with his wife without her consent cannot be classified as rape.

However, subjecting the married partner to have oral or unnatural sex was akin to cruelty.

The court made these observations in a case related to a complaint filed by a lady doctor of rape and physical harassment against her husband, who too happens to be a medical professional.

The lady doctor had stated in her complaint that her husband forced her to have sexual intercourse with him against her wishes and that he would subject her to have oral sex and indulge in unnatural sexual activities, other than torturing her for dowry.

Seeking rejection of his wife's complaint against him, the husband moved the high court.

Justice J B Pardiwala observed that husband having a physical relationship with his wife against her consent cannot be termed as rape. "The husband cannot be prosecuted for the offence of rape punishable under Section 376 of the IPC at the instance of his wife as the marital rape is not covered under Section 375 of IPC...which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape," the court observed.

The court, however, said that a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC.

Justice Pardiwala observed that demanding dowry or harassing someone for it too amounted to being a crime.

While the court ordered the continuation of hearing on the complaint of the lady doctor, it rejected the complaint against the parents of her husband.

The court also refused to hand over investigations to agencies like the CID or the CBI.

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