Sexual intercourse by husband not rape, even if it was by force or against wife's wish: Chhattisgarh High Court

Given that marital rape is not recognised or considered an offence in Indian law, the Chhattisgarh High Court recently discharged a man from facing trial for rape on a complaint by his wife (Dilip Pandey and ors v. State of Chhattisgarh)..Justice NK Chandravanshi noted that Exception 2 to Section 375 (which defines the offence of "rape") of the Indian Penal Code (IPC) lays down that "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.".The Court noted that this provision makes it clear that sexual intercourse or a sexual act by a man with his own wife (not being a minor) is not rape. The Court ruled, "In this case, complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish.".As such, a charge framed against the husband under Section 376, IPC was held to be erroneous and illegal."Hence, he is entitled to be discharged from the charge under Section 376 of the I.P.C", the Court said. .However, charges framed in the case under Sections 498A (relating to cruelty to women) against the husband and his family members and 377 (unnatural offences, carnal intercourse against the "order of nature") were sustained. .The Court was hearing a criminal revision plea moved by the husband and his family members challenging the framing of all these charges on a complaint by the first applicant's wife. .The wife had alleged that days after her marriage, she was subjected to cruelty, abuse and dowry harassment. Among other allegations, she also alleged that her husband had inserted his fingers and radish in her vagina, despite her protest and that he had had unnatural physical relations with her. Efforts to settle the dispute were in vain, the Court was told..Finding no infirmity in the charge framed under Section 377 IPC, the Court said, "... where dominant intention of the offender is to derive unnatural sexual satisfaction, repeatedly insert any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the I.P.C.".To sustain the charges framed under Section 498A, IPC, the Court noted that there were written reports and statements by the complainant-wife about the cruelty she faced, which were supported by her parents. "Those facts have also been stated by their neighbouring witnesses in their police statements. Therefore, I do not find any infirmity in framing charges under Section 498-A/34 of the I.P.C. against the applicants," the Court said. .On a related note, the Kerala High Court recently ruled that while marital rape is not a criminal offence under Indian law, it amounts to cruelty and can, therefore, entitle a wife to divorce..[Read Order]