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The Gujarat High Court is currently hearing a plea to decide whether a wife can initiate prosecution against her husband for unnatural sex punishable under Section 377 (rape) of the Indian Penal Code (IPC).
The HC was hearing a plea issued by a man seeking to quash a complaint of marital rape by his wife. Justice JB Pardiwala listed the questions the court proposes to consider:
While giving today’s oral order, the court said, “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.”
It termed marital rape as “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, said Justice JB Pardiwala.
Furthermore, the court recognised three kinds of marital rape prevalent in the society:
The next hearing is set on November 23.
Last month, the Supreme Court has held that the Exception Clause 2 (sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape) to Section 375 of the IPC is violative of the Indian Constitution and not in conformity with the Protection of Children from Sexual Offenses Act (POCSO), 2012. The apex court judged that intercourse with wife younger than 18 years of age is rape.
Currently, the Delhi High Court is also hearing a plea challenging marital rape.
The Gujarat High Court’s statement is highly appreciated. Rape cannot be put into different categories. A rape is a rape, whether committed by a stranger, an acquaintance, or even a husband. Indian law needs to remove the special provision given to some rapists and accept that marital rape is a reality that thousands of women suffer from.
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