Man can't be charged if wife isn't minor: HC on 'marital rape'

The Allahabad high court has observed that 'protection of a person' from being charged in 'marital rape continues in cases where the wife is of 18 years of age or more'.

The court also cited the judgment in the case of Independent Thought Vs Union of India (2017) where the Supreme Court had held that any sexual intercourse between a man and his wife aged between 15 to 18 years would amount to rape.

Justice Ram Manohar Narayan Mishra, while acquitting a husband under Section 377 of the Indian Penal Code for allegedly committing 'unnatural sex' with his wife, noted that 'ingredients of unnatural sex, comprised under Section 377 IPC are included in Section 375 (a) IPC as observed by the High Court of Madhya Pradesh'.

In its order, the MP high court had opined that Section 375 IPC related to rape (as amended by the 2013 Amendment Act) includes all possible parts of penetration of the penis. When consent for such an act is immaterial, then there is no scope for the offence of Section 377 IPC to get attracted where husband and wife are involved in sexual acts.

"Thus, on perusal of aforesaid judgement also it appears that protection of a person from marital rape still continues in the case where the wife is of 18 years of age or more than that," the high court said.

While partly allowing a revision petition filed by the accused, Justice Ram Manohar Narayan Mishra noted that in the proposed Bhartiya Nyay Sanhita, which is likely to replace the Indian Penal Code, there is no provision of 377 of IPC.

The court, however, affirmed his conviction and sentence for charges under Section 498A (harassment for dowry) and 323 of the Indian Penal Code.

In 2013, an FIR was lodged against the man under Sections 498A, 323, 504 and 377 of IPC and also under the Dowry Prohibition Act in Ghaziabad.

The trial court at Ghaziabad convicted him and the appellate court also upheld the findings after which he moved the revision petition.

The high court noted that there was no factual or legal error in the finding of guilt recorded by the appellate court as regards the charge under section 323, 498-A IPC.

The court noted that certain petitions are pending for consideration before the Supreme Court seeking criminalising marital rape, but till any decision comes on those petitions, the court added, there is no criminal penalty for such acts when the wife is of or above 18 years of age.

Besides noting that the medical evidence in the case was not supportive of allegations of commission of unnatural sex, the court in this judgment dated December 6 said, 'In the proposed Bhartiya Nyay Sanhita which is likely to replace I.P.C., no provision like Section 377 IPC is included therein.'

'The charge of committing matrimonial cruelty against the revisionist is proved in this case and the same is corroborated by the findings of the family court while decreeing the divorce petition and this court in appeal while affirming the decree of divorce against the revisionist,' it said.