Marital rape is not husband's privilege, should be criminalised: Gujarat HC

“A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape.  It allows the men and women to believe that wife rape is acceptable.”

These were the words were uttered by a judge in court. While adjudicating a case between a doctor couple, Justice Pardiwala at the Gujarat High Court observed on Monday that the total abolition of the marital rape exemption under section 375 (rape) of the Indian Penal Code was the primary step to put across the point that dehumanized treatment of women is intolerable and sex is not a husband’s privilege.

“Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape.  Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed,” Justice Pardiwala said, according to Live Law.

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

The complainant said that her husband forced her to have sexual intercourse with him against her wishes and that he would also subject her to have oral sex and indulge in unnatural sexual activities, other than torturing her for dowry.

Seeking rejection of her wife's complaint from August 2017 against him, the husband moved the Gujarat High Court.

The court held that the husband could be held guilty under section 354 of the IPC, for outraging the modesty of his wife, and asked the Investigating Officer to add the said section into the FIR. It also asked for booking the doctor under section 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC.

Using section 354

When it comes to section 354 specially, the Gujarat HC said that because it pertains to “any woman”, it suggests “that a person may be held guilty of outraging the modesty of any woman including the one who is his wife.”

The court conceded that “certain overtures or acts of affection and love in private by the husband, which may not be acceptable to the wife in public” would not be considered in violation of section 354. However, “highly personal acts of love and affection”, disliked by the woman and done in public would then go against public morality and hence, come under the purview of section 354.

“Such personal acts done by the husband as are not acceptable to the wife even in private and also not approved by society, should also fall under the scope of section 354. Today no woman or society would approve of perverted sexual acts as being a legitimate part of the spousal relation,” the court added.

However, the judge allowed for partial quashing the FIR when it came to prosecuting the man under sections 376 (punishment for rape) and 377 (unnatural sex) of the IPC.

On marital rape

Conceding that in the present scenario, men cannot be prosecuted for marital rape, the court said, “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.”

Justice Pardiwala conceded however that marital rape is a violence that has both a history and victims aplenty regardless of whether it has legal sanction or not. He said, “Marital rape is a widespread problem for a woman that has existed for centuries throughout the world. This problem has received relatively little attention from the criminal justice system and the society as a whole. Marital rape is illegal in 50 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweeden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia.”

He also called it a form of “domestic violence”, “sexual abuse” and a “disgraceful offence” which must be criminalised. “A large population of women has faced the brunt of the non-criminalization of the practice,” the court observed.

The otherwise thoughtful judgment however considers oral sex such as cunnilingus and fellatio as “perverted” sexual behaviour. While the court does talk about these in a non-consensual context, the language used indicates that these are not “normal” sexual acts:

“If between the two spouses one spouse wants healthy and normal sexual relations and the other is desirous of having perverted sexual relations such as cunnilingus and fellatio as alleged by the wife in the present case then normal sexual relations between the spouses which form basis of a happy marital life would be floundered,” the court said.