Marital Rape Is A Disgraceful Offence That Has Scarred The Trust & Confidence In The Institution Of Marriage: Gujarat HC

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:

• 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 (cruelty) of the IPC.
• Whether forcing a wife by the husband to indulge in oral sex would amount to rape punishable under Section 376 (punishment for rape) of the IPC.

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:

1. Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways. Some instances are those where the wife is battered during the sexual violence, or the rape may follow a physical violent episode where the husband wants to make up and coerces his wife to have sex against her will. In most cases, the victims fall under this stated category.
2. Force only rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. In such cases, battering may not be a characteristic and women who refuse sexual intercourse usually face such assaults.
3. Obsessive rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. This type has also been labelled as sadistic rape.

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 Logical Indian take

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.