“Non-consensual sex with wife is not rape but forcing her for oral or unnatural sex is cruelty”

Rape incident
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Gujarat High Court observes that a husband cannot be prosecuted for the offence of rape at the instance of his wife

The Hush Post: In an important judgement, the Gujarat High Court observed on Monday that non-consensual sexual intercourse with wife is not rape but forcing her to perform oral or unnatural sex amounts to cruelty.

The Gujarat High Court’s ruling came in a petition filed by a doctor who had filed a petition in the court to get an FIR filed against him by his wife quashed.

The High Court ruled that a man cannot be prosecuted for rape at the instance of his wife due to exception II in Section 375 of the Indian Penal Code (IPC).

Notably, the exception in the IPC 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 ruled that the wife can initiate proceedings against the husband for unnatural sex under section 377 of the Indian Penal Code as consent is not a determining criterion in the case of unnatural offence.

The court also ordered investigation for outraging the modesty of the wife under the provisions of the IPC though that offence had not been mentioned in the original FIR lodged with a police station in Gujarat’s Sabarkantha district.

A lady doctor had lodged a First Information Report( FIR) with the Idar Police Station, accusing her husband of rape, unnatural sex and dowry harassment, following which the husband had approached the High Court to quash the FIR.

But the High Court refused to quash the dowry charges against the man observing 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).

The court apart from quashing the sections of rape in the FIR also quashed the FIR against the parents of the accused doctor.

Letting off the parents, the court observed that as usual in a dispute between the husband and wife, the parents of the husband have also been dragged into the prosecution, DNA reported on Tuesday.

It also rejected the wife’s request that the case be investigated by the state CID crime or CBI, report said.

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