Rape charge against husband “erroneous & illegal” even if intercourse was by force or against wife’s will, Observes Chattisgarh High Court

“Sexual intercourse or any sexual act with husband would not constitute an offence of rape, even if it was by force or against wife’s wish,” Chattisgarh High Court has observed in a criminal revision petition filed by a man against the order passed by the Addl. Sessions Judge.

The bench also noted that, the charge under Section 376 of the I.P.C. framed against the applicant husband is erroneous and illegal.

According to the facts of the case, the marriage of the couple was solemnized in 2017. After few days of marriage, the applicants had started harassing complainant on demand of dowry i.e. money and other articles. “The applicants also used to abuse her and commit 'maar-peet' with her”. The complainant stated that many a times the applicant had made unnatural physical relations with her.

Consequently, the complainant filed written complaint against the applicants. After investigation, chargesheet under Sections 498-A, 377, 376, 34 of the IPC was filed against the applicants. After affording opportunity of hearing to both the parties, the trial Court framed charges against the applicants as mentioned.

The single bench of Justice N.K. Chandravanshi while discharging the man from facing trial of rape noted that,

“Exception II of Section 375 of the I.P.C, makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

However, the Bench partly allowed the revision petition and framed charges against husband applicant under Sec. 377 of IPC after observing that his act of making unnatural physical relation would amount to the said offence.

The Bench noted that it found no infirmity or illegality committed by trial Court in framing the charge under Section 377 of the I.P.C. against the applicant husband and observed that,

“In terms of Section 377 of the I.P.C. where dominant intention of the offender is to derive unnatural sexual satisfaction, repeatedly insert any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the I.P.C.”

The counsel for the applicant, to buttress his arguments in favour of the applicant husband, cited Gujarat High Court's verdict in Nimeshbhai Bharatbhai Desai v State of Gujarat 2018 and submitted that,

• the complainant and the applicant No. 1 are legally wedded wife and husband, therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the I.P.C. are spelt out against applicant No. 1, because, in India, marital rape is not recognized and the same is not an offence in view of Exception II of Section 375 of the I.P.C.
• Carnal intercourse against the order of nature with any man, woman or animal voluntarily is a necessary ingredient of Section 377 of the I.P.C. which is not present in this case. Therefore, the order of framing of charges against the applicant No. 1/ husband under Sections 376 and 377 of the I.P.C. is illegal and erroneous.

In this light, the Bench referred to para 162 of the above stated judgment where it was held that,

“A wife can initiate proceedings against her husband for unnatural sex under Section 377 of the I.P.C. Section 377 of the I.P.C. does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under Section 377 of the I.P.C.”

Case Title - Dilip Pandey & Ors. v. State of Chhattisgarh