Gujarat high court underlines need to make marital rape criminal offence
The Gujarat High Court on Monday observed the “destructive attitude” that promotes rape in a marriage can be removed only by making marital rape “illegal”.
Hearing a petition filed by a doctor seeking quashing of an FIR of rape registered against him by his wife, Justice JB Pardiwala said the attitude that promotes rape in a marriage can be removed only by making marital rape “illegal or an offence”.
The judge today partly allowed quashing of the FIR registered by police against the doctor at Idar in Sabarkantha district, stating that Sections 376 (punishment for rape) and 377 (unnatural sex) will not be applicable against the petitioner.
The high court, however, directed the police to instead book the doctor under Sections 354 (sexual harassment) and 498 (A) (husband and relative subjecting a woman to cruelty) after his wife, also a doctor, told the court that he was subjecting her to mental and physical torture and forcing her to have oral sex.
“No one is even willing to discuss to reform the criminalisation of marital rape...A law that does not give married and unmarried women an equal protection creates conditions that lead to the marital rape,” justice Pardiwala said in his order.
“Making marital rape illegal or an offence will remove the destructive attitudes that promote the marital rape,” he noted.
“The total statutory abolition of the marital rape 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 judge wrote.
The accused doctor moved the HC seeking quashing of the FIR after police had booked him for rape and unnatural sex August last.
The high court today directed the police to drop charges of rape and unnatural sex against the doctor and asked them to investigate him for cruelty and sexual harassment.
The court also directed the investigating officer to examine if a dowry case was made out before adding sections of the Dowry Prohibition Act.
The court made these observations in a case pertaining to a lady doctor’s complaint of rape and physical harassment against her husband, who too happens to be a medical professional.
The complainant said her husband forced her to have sexual intercourse with him against her wishes and that he would also subject her to have oral sex and indulge in unnatural sexual activities, other than torturing her for dowry.
Seeking rejection of her wife’s complaint against him, the husband moved the Gujarat High Court.
Stating that physical relationship with his wife against her consent could not be termed as rape, Justice JB Pardiwala observed: “The husband cannot be prosecuted for the offence of rape punishable under Section 376 of the IPC at the instance of his wife as the marital rape is not covered under Section 375 of IPC... which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”
Pardiwala, however, said a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the IPC.
Quoting and citing previous judgments, the court observed that though a husband had the right to have sex with his legally wedded wife, she was not his property and it should not be without her consent.
The court also observed that demanding dowry or harassing someone for it too amounted to a crime.
Justice Pardiwala refused to hand over the case investigation to agencies like the CID or the CBI and ordered continuation of hearing on the complaint of the lady doctor. It also rejected the complaint against the parents of her husband filed by the complainant.