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'Unnatural sex against wife's will is cruelty, but…', rules Madhya Pradesh high court
The MP high court said unnatural sex with wife is not an offence under IPC 376/377, but it amounts to “cruelty” if linked with violence and physical abuse.
The Madhya Pradesh high court has ruled that forcing unnatural sex on one's wife, along with physical assault and cruelty, amounts to an offence under Section 498A of the IPC, The Times of India reported on Friday.
However, it clarified that the husband cannot be prosecuted under Sections 377 or 376, since ‘marital rape’ is not a punishable offence under current Indian law.
The court upheld the FIR filed by a woman against her husband.
The police had earlier charged the husband under Sections 377 (unnatural offences), 323 (voluntarily causing hurt), and 498A (cruelty by husband or relatives).
The husband challenged the FIR, arguing that unnatural sex with one's wife is not a crime under Indian law.
He also claimed that Section 498A should not apply, as the complaint did not include any dowry-related allegations.
What did the court say?
Justice GS Ahluwalia of the Gwalior bench observed in his order that while unnatural sex with one’s wife doesn’t amount to an offence under IPC sections 376 or 377, it can still constitute cruelty if accompanied by violence and physical abuse.
"Committing unnatural sex with a wife against her wishes and on her resistance, assaulting and treating her with physical cruelty will certainly fall within the definition of cruelty. It is not out of place to mention here that demand of dowry is not sine qua non for cruelty." The TOI quoted the judge as saying.
The order further explained that, "From a plain reading of IPC section 498A, it is clear that any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb, or health, whether mental or physical, to the woman, would amount to cruelty."
While the court quashed the charge under Section 377, it held that there was enough evidence to proceed under other provisions.
“However, since there are specific allegations that whenever the wife resisted the unnatural conduct of petitioner, she was assaulted and treated with physical cruelty, this court is of the opinion that offence under section 498A IPC is made out,” the court said.
“Accordingly, this application is partially allowed. Offence under section 377 is hereby quashed. However, FIR in relation to offence under Section 498A and 323 stands,” it added.
No offence if husband forces unnatural sex: Chhattisgarh HC
In a February ruling, the Chhattisgarh high court held that a husband cannot be prosecuted for rape or unnatural sex for engaging in sexual activity with his adult wife, regardless of her consent, Live Law reported.
Justice Narendra Kumar Vyas, presiding over a single-judge bench, stated that the wife's consent is irrelevant in such cases of sexual or unnatural intercourse within marriage.
The case involved an incident from December 11, 2017, in which a man allegedly forced his wife into unnatural sex against her will. Following the act, the woman was hospitalised and later died. In her dying declaration, she accused her husband of forceful sexual intercourse. Doctors later found that she died due to peritonitis and rectal perforation.
Despite this, the court noted that under Indian law, sexual acts with a wife who is not under 15 years of age do not qualify as rape. As a result, it ruled that unnatural sex in marriage cannot be treated as a criminal offence.
The husband, who had been sentenced to 10 years in prison by a trial court, was ultimately acquitted of all charges.
