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Published On: Tue, Apr 3rd, 2018

Sex without wife’s consent not rape: Gujarat High Court

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603293-hc-gujarat-080317AHMEDABAD : Having sex with wife without her consent can’t be considered as rape, observed Gujarat High Court on Monday in connection with a complaint filed by a lady doctor against her husband.
The court also observed that forcing spouse to have oral sex was cruelty. Justice JB Pardiwala’s court further observed that the husband can’t be prosecuted for the offence of rape under section 376 of IPC. According to the court the offence was also not covered under section 375 of IPC as sexual intercourse by a man with his own adult wife (above 18 years) wouldn’t be termed as rape.

A lady doctor had filed an FIR with the Idar police, accusing her husband of rape, unnatural sex and dowry harassment, following which the husband moved the court to quash the FIR.The complainant said that 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.

The complainant as well as her husband both is in medical profession. According to the complainant her husband forced her in sexual intercourse against her wishes and that he would subject her to have oral sex and indulged in unnatural sexual activities, other than torturing her for dowry. The lady doctor’s husband too filed a petition to reject his wife’s complaint.

Justice Pardiwala’s ruling came in connection with a petition filed by a doctor who approached the court to get an FIR filed against him by his wife quashed. The court observed that a husband cannot be prosecuted for the offense of rape at the instance of his wife due to exception II in Section 375 of the IPC.

It should be noted that the exception provides that sexual intercourse by a man with his own wife (when she is above the age of 18 years) is not rape. The court also observed that the wife can initiate proceedings against the husband for unnatural sex under section 377 of the IPC as consent is not a determining criterion in the case of unnatural offense.
The court also sought investigation under sections for outraging the modesty of the wife (section 354) though that offence was not made out in the original FIR filed with the Idar Police Station in Sabarkantha district.
The court, however, refused to quash the dowry complaint against the husband stating that a prima facie case was made out. It also directed the DSP of Himmatnagar to monitor the investigation and to look into the grievance of the victim that the FIR was not written as per what was actually stated by the victim (the wife).

 

 

 

 

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