Marital rape ‘no crime’ if wife is 18 or above: Allahabad HC

The court clarified that in 2017, the Supreme Court held that any sexual intercourse between a man and his wife (aged between 15 and 18 years) would mean rape.

While acquitting a man of the charges under section 377 of the Indian Penal Code (IPC) for allegedly committing an “unnatural offence” against his wife, the Allahabad high court has observed that protection of a person from marital rape continues in cases where his wife is of 18 years of age or more.

The court in its judgment noted that the medical evidence was not supportive of allegations of commission of unnatural offence. (For Representation)

The court also clarified that as per the judgment in the case of Independent Thought Vs Union of India (2017), the Supreme Court held that any sexual intercourse between a man and his wife aged between 15 and 18 years would amount to rape.

While partly allowing a revision petition filed by one Sanjeev Gupta, the accused husband, Justice Ram Manohar Narayan Mishra noted that in the proposed Bhartiya Nyay Sanhita, which was likely to replace Indian Penal Code, there was no provision of section like 377 of the IPC.

The court in its judgment dated December 6, 2023, also noted that the medical evidence in the case was not supportive of allegations of commission of unnatural offence. While acquitting the accused of the charge under section 377 of the IPC, the court affirmed his conviction and sentence for charge under sections 498A (harassment for dowry) and 323 ( voluntarily causing hurt) of the IPC.

The facts of the case were that in 2013, an FIR was lodged against Sanjeev Gupta by his wife under section 498A, 323, 504 and 377 of the IPC and also under the Dowry Prohibition Act at Link Road police station in Ghaziabad. However, after trial, the trial court at Ghaziabad convicted him under the aforesaid sections. In the appeal, the appellate court also upheld the findings of the trial court. Hence, he filed the present revision petition before the high court.

Against this backdrop, the court noted that there was no factual or legal error in the finding of guilt recorded by the appellate court as regards charge under sections 323 and 498-A of the IPC. However, regarding the conviction under section 377 of the IPC, the court opined that marital rape has not been criminalised in this country as yet.

However, the court did note that certain petitions were pending for consideration before the Supreme Court seeking criminalising marital rape, but till any decision came on those petitions, the court added, there was no criminal penalty for marital rape when the wife is of or above 18 years of age.