Gujarat High Court condemns disgraceful offence of Marital Rape [Read Order]

At a time when the Parliament has refused to criminalise marital rape, and the Delhi High Court is debating the issue, Justice JB Pardiwala of the Gujarat High Court has expressed his strong censure for the offence of marital rape..Justice Pardiwala was hearing a case filed by a woman against her husband on allegations of having been forced into performing oral sex, which is ordinarily punishable as constituting the offence of unnatural sex under Section 377 of the Indian Penal Code. The primary issue in question was whether a wife can initiate action against her husband for the statutory offence of unnatural sex..Before issuing notice, the judge in no uncertain terms observed,.“Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.”.The judge also agreed to a definition of the offence in the following terms:.“Marital rape refers to “unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent.” It is a nonconsensual act of violent perversion by a husband against the wife where she is abused physically and sexually.”.The court went on to note that marital rape may also be categorised as failing under at least three heads i.e. Battering rape, Force only rape and Obsessive rape/Sadistic rape.On the main matter, the court has taken up the following questions for consideration, i.e..Whether a wife can initiate prosecution against her husband for unnatural sex punishable under section 377 of the Indian Penal Code? If the husband forces his wife to indulge in oral sex, whether the same would constitute an offence under section 377 of the IPC?If the husband compels his wife to indulge in oral sex, whether the same would constitute an offence of cruelty within the meaning of section 498-A of the IPC?Whether forcing a wife by the husband to indulge in oral sex would amount to rape punishable under section 376 of the IPC?.The case has been posted to be taken up next on November 23, 2017..Read Order below.