April 3,2018:
HC quoted, in great detail, legal provisions existing across in countries the world on marital rape and observed that the legislature must criminalise the offence.
On Monday, Gujarat HC expounded that a Wife cannot charge her husband with marital rape even if the man has sex with her without her consent if she is above 18 years of age.
Gujarat High Court Judge, Justice J B Pardiwala expounded that offence of rape by a husband is not an offence punishable under Indian Penal Code Section 375, which defines Rape.
HC Judge lamented the position of a law which does not enable a woman to prosecute her husband for rape and called for legal provisions so that a woman could protect her body the way she has been enabled to protect her other rights.
Justice Pardiwala further added that mere apprehension of its misuse by “unscrupulous” women should not be a deterrent to enacting legislation to protect women battered by marital rape, which is rampant in India.
Gujarat HC Bench made above stated observations in a case wherein Wife had accused her husband in August,2017 of forcing her to have sex, including oral sex, without her consent.
HC stated that a wife can initiate criminal proceedings against her husband for unnatural sex under IPC Section 377. Consent is not a determining criterion in such a case.
Bench concluded by stating that,"Forcing a wife to have sex would attract the charge of outraging the modesty of woman under Section 354 of Indian Penal Code and ordered cops to probe the case in this direction.
It also ruled that a husband forcing his wife to have sex amounts to cruelty and the husband is liable to be punished under Section 498A of Indian Penal Code.
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
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