The Gujarat High Court on Monday observed that a man forcing his wife into oral sex is cruelty, but sex without her consent does not amount to rape if she is above 18 years of age.
The High Court's observation comes in response to a petition filed by a doctor seeking quashing of an FIR registered against him on a complaint of rape by his wife. The doctor's wife had also leveled charges of dowry harassment and forcefully engaging her to have oral sex with him.
Justice JB Pardiwala during the hearing of the case said that the doctor cannot be held guilty owing to an exception clause in the rape law that permits men to engage in intercourse or a sexual act with his wife without being held guilty for rape
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"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," justice Pardiwala said.
But the court has said that the petitioner's wife can initiate proceedings against her husband for oral sex or unnatural sex under Section 377 of the Indian Penal Code as consent is not a determining criterion in this case.
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The HC has also not quashed the dowry harassment charges.
Despite ruling that the petitioner is not guilty of raping his wife, Justice Paridawala stressed on the need to to make marital rape criminal a criminal offence.
“The total statutory abolition of the marital rape exemption 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,” justice Pardiwala was quoted as saying by Indian Express.
"Making marital rape illegal or an offence will remove the destructive attitudes that promote the marital rape," he further added.
(With Inputs from IANS and PTI)
