'Bodily freedom applies even in marriage', Gujarat HC denies bail to Gurugram businessman

Ahmedabad: Holding that modern legal framework has started to recognise individual's "bodily freedom" even in marriages traditionally seen as an "automatic grant of sexual consent", the Gujarat high court has refused to grant anticipatory bail to a Gurugram-based businessman accused of mentally and sexually abusing his wife.

"No doubt, marriage has been seen as an automatic grant of sexual consent since decades, however, the modern legal frameworks increasingly recognize the bodily freedom of an individual, even within a marital relationship," justice Divyesh A Joshi wrote in the order passed on January 5.

"Intimacy is normal between every married couples, however, the same has to be a consensual and mutually respectful act. Having an unnatural sex by any spouse against the will and wish of other partner not only causes immense physical pain but it also gives mental, and emotional trauma to the unconsented spouse," justice Joshi observed in the order.

It further added, "We do understand that no women in our civilised and cultured society would come forward and confront such sensitive issues in public until the level of such harassment and abuse goes beyond her tolerance.".

The court passed these observation while rejecting the anticipatory bail application of the petitioner, an influential businessman from Gurugram, whose estranged wife has filed an FIR with the Ahmedabad Detection of Crime Branch.

While the court refused to grant him any relief from arrest holding that alleged charges of physical and sexual assault was "quite grave in nature," the police are yet to apprehend the accused. In the court, his defense lawyers submitted that

The court order mentions that the first wife of the accused petitioner had made similar kind of charges. Based on this record court stated that the petitioner was "repeat offender" and "habitual." The court also opined that "there seems to be a prima facie involvement of the present applicant in the commission of the alleged offence."

The lawyers of Gurugram-based petitioner described him as "a business tycoon and multi-millionaire, residing in a

huge bungalow and is living a luxurious life," to say that the charges of the dowry were baseless and allegations of mental and sexual assaults were "vague" and "baseless." They described the complainant as a "highly educated lady, a law graduate and a chartered accountant," to say that she was never under threat or held against her will.

The court, however, stated in the order that the allegations leveled in the FIR and "facts" narrated by the complainant and witnesses, it was not a "simple case of matrimonial dispute" and prima facie there was "something beyond the general and usual allegations stated to be being made in every matrimonial disputes by the wife."