Woman dies of husband’s sexual act, HC cites marital rape ground to acquit him
Chhattisgarh high court acquits a man of marital rape charges, citing legal immunity for husbands, reigniting debates on marital consent laws in India.
Raipur A 40-year-old man who allegedly indulged in brutal unnatural sex with his wife, which eventually led to her death, has been exonerated by the Chhattisgarh high court on the grounds that a man cannot be prosecuted for marital rape in India.
In his judgment on Monday, a single-judge bench of justice Narendra Kumar Vyas set aside the conviction of an accused, acquitting him of all charges under sections 376 (rape) and 377 (unnatural sex) and 304 (culpable homicide) of the Indian Penal Code (IPC), and ordered his immediate release from jail.
The high court verdict cited Exception 2 under Section 375 of IPC, which exempts a husband from prosecution for raping his wife, underscoring the continued legal immunity afforded to marital rape. “It is quite clear that if the wife is not below 15 years of age, then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape... As such, the absence of consent of the wife for an unnatural act loses its importance,” held justice Vyas.
He said that since Exception 2 under Section 375 provides that sexual intercourse or sexual acts by a man with his own wife is not a rape, “if any unnatural sex as defined under section 377 is committed by the husband with his wife, then it can also not be treated to be an offence”.
To be sure, the reliance on the 15-year age limit is at odds with the Supreme Court’s 2017 ruling in the Independent Thought case, which read down the marital rape exception to hold that sexual intercourse by a man with his wife under 18 years of age constitutes rape and is criminally punishable.
The alleged offence in this case was committed in December 2017, two months after the Supreme Court’s landmark verdict in October 2017.
The judgment reignited concerns over a legal vacuum in cases involving marital relationships, where a wife’s consent is rendered immaterial, even as a series of recent Supreme Court rulings, including the 2017 right to privacy verdict, have emphasised the importance of sexual autonomy for individuals.
The case involved the husband of a deceased minor victim who died on December 11, 2017. The prosecution argued that the man engaged in forceful and unnatural sexual intercourse with his wife, inserting his hand into her anus, which allegedly led to severe pain and ultimately contributed to her death. The victim’s dying declaration, recorded by an executive magistrate, stated that she had fallen ill due to the forceful sexual intercourse by her husband.
In May 2019, the trial court convicted the appellant for rape, unnatural offences, and culpable homicide not amounting to murder, sentencing him to 10 years of rigorous imprisonment.
Despite the prosecution’s contention regarding the severity of the offence, justice Vyas chose to overturn the order.
“In the present case, the appellant is a ‘husband’ and victim is a ‘woman’ and here she is a ‘wife’ and parts of the body which are used for carnal intercourse are also common, therefore, the offence between husband and wife cannot be made out under Section 375 of IPC,” the high court judge wrote in the order.
About the homicide charges, justice Vyas maintained that the girl’s dying declaration could not be relied upon because it lacked corroboration and there were doubts about its veracity too
The verdict comes at a time when the contentious issue of the criminalisation of marital rape has remained pending before the Supreme Court for over two years. The apex court is currently seized of a batch of petitions challenging the constitutionality of this exception, with public interest litigations contending that the provision is discriminatory against married women who are sexually assaulted by their spouses.
The Union government has defended the provision in the apex court, arguing that removing the exception could destroy the institution of marriage and urged the Supreme Court to respect the legislature’s wisdom in retaining the provision. The Bharatiya Nyaya Sanhita (BNS) -- the new law that replaced the IPC with effect from July 1, 2024 – contains a similar immunity provision for husbands. BNS does not have any provision akin to Section 377 of IPC for making non-consensual unnatural sex as an offence.
While acknowledging that a husband has no fundamental right to violate the consent of his wife, the government has maintained that invoking stringent penal provisions of rape in matrimonial relationships would be excessively harsh and could have far-reaching socio-legal implications. The controversial October 2024 affidavit further warned of the “potential misuse” of such a law if the exception is removed.