Gujarat High Court upheld marital rape to be criminalized

Gujarat High Court acquitted a man accused of raping his wife on the basis ground of lack of law on marital rape. The court opined that marital rape needs to be punishable under law.

The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalised,” the court said.

A petition was filed by a man pleading to quash FIR filed by his wife alleging offence of rape (Indian Penal Code 376) and unnatural sex (Indian Penal Code 377), among other charges.

Justice J B Pardiwala said a man can’t be booked for raping his wife under section 376 of the IPC, since it was not covered under IPC 375. “The husband cannot be prosecuted for the offence of rape at the instance of his wife in view of exception-II in section 375 of IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, who is not being under 18 years of age, is not rape.”

The court quashed the charges of rape and sodomy but it ordered to add sections for sexual harassment and domestic violence under section 498a of the IPC.

Justice Pardiwala said: “…A law that doesn’t 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’s rape is acceptable.”