Chhattisgarh HC acquits man: Unnatural sex with wife without consent is not offence

Overturning the verdict, the HC held that “sexual intercourse or sexual acts by a man with his own wife is not a rape and therefore if any unnatural sex as defined under Section 377 is committed by the husband with his wife, then it can also not be treated to be an offence.”

On Section 375, the HC cited the marital rape exception under which a man cannot be prosecuted even for non-consensual sex with his major wife.

Section 377, which criminalises non-consensual “carnal intercourse against the order of nature”, does not contain the marital rape exception. The Chhattisgarh HC has essentially read the Section 375 exception to Section 377 as well.

The HC relied on the Supreme Court’s ruling in Navtej Singh Johar vs Union of India (2018) which decriminalised homosexuality under Section 377 and noted that, following the ruling, if an unnatural offence is committed between consenting partners “Section 377 IPC is not made out”.

Justice Narendra Kumar Vyas said this was “inconsistent” with the marital rape exception which is an “exception provided for not taking consent i.e. between husband & wife”.

The HC also stated that its interpretation is because the marital rape exception is part of a provision that was amended in 2013 and would prevail over the older law. Essentially, the HC cited a “well settled principle of law” that if two provisions are inconsistent “then the two cannot stand together and earlier is abrogated by the latter”. Both Sections 375 and 377 are part of the IPC and were brought in at the same time. However, in 2013, the definition of rape was expanded through an amendment but the marital rape exception itself was not amended.

As per the prosecution, the man was arrested on December 11, 2017 based on the statement of his wife recorded before an executive magistrate before she died the same day at a government hospital.

On the culpable homicide charge, the HC expressed doubts on the dying declaration. The HC stated that while the trial court relied on the dying declaration, the statement did not in fact state that the injuries were caused due to the intercourse. The executive magistrate who testified had told the court that he was told this by the deceased separately. The HC said that a dying declaration must not need corroboration to be considered as admissible evidence.

The HC deemed the man’s conviction under IPC Section 304 “perverse” and quashed it . “The learned trial court has not recorded any finding how the offense under Section 304 of the IPC is attracted to the present facts of the case and proved by the prosecution. Still, it has convicted the appellant under Section 304 IPC, which is nothing but perversity and patent illegality…,” the HC observed. The judge acquitted the man of all charges and ordered his immediate release from jail. —With PTI inputs