‘No default consent in marriage, law recognises bodily freedom’: Gujarat High Court junks man’s plea in wife’s ‘rape’ case

The Gujarat High Court said record revealed that the accused has married second time to the complainant and his first wife had also made the similar kind of allegations against him. (Image enhanced using AI)

Findings

• Having an unnatural sex by any spouse against the will and wish of other partner not only causes immense physical pain but it also gives mental, and emotional trauma to the unconsented spouse.
• No women in our civilised and cultured society would come forward and confront such sensitive issues in public until the level of such harassment and abuse goes beyond her tolerance.
• The record reveals that the applicant has married second time to the complainant and the first wife of the applicant had also made the similar kind of allegations against him.
• This shows that the he is a repeat offender and habitual in doing such kinds of acts.
• The alleged offence of physical and sexual assault is “quite grave” in nature.
• It is equally incumbent upon the court to analyse the seriousness of the offence and determine if there is a need for custodial interrogation.
• It appears that the present case is not a simple case of matrimonial dispute.
• It prima facie seems to be something beyond the general and usual allegations stated to be being made in every matrimonial case.
• It appears that very serious allegations have been made against the applicant.
• At this stage, custodial interrogation of the applicant is very much necessary.
• There seems to be a prima facie involvement of the man in the commission of the alleged offence.
• At the initial stage of the investigation of the offence, grant of anticipatory bail in his favour likely to hamper the investigation.
• The investigating agency is likely to lose an opportunity to exploit all the facts, situations, probabilities or opportunities which the agency may get during the custodial interrogation.
• This court should refrain itself from exercising its discretionary powers in favour of the present applicant at this stage.

Background

• The complainant-wife alleged that soon after her marriage in February 2022, she was subjected to sustained mental cruelty, dowry harassment, physical violence, and sexual abuse by her husband and in-laws.
• The FIR was lodged on October 14, 2025, following which the husband sought anticipatory bail after his plea was rejected by the trial court.
• Aggrieved by the trial court order, he approached the high court which reserved its order on December 24, 2025.

Arguments

• Senior advocate Yatin Oza, appearing for the applicant, argued that the dispute was essentially matrimonial in nature and that custodial interrogation was unnecessary.
• He contended that the FIR was lodged with considerable delay and was a counterblast to divorce proceedings initiated by the husband in May 2024.
• The defence also claimed that the applicant was a successful businessman, that no dowry was demanded, and that the allegations were vague and unsubstantiated.
• Photographs of the couple and travel records were relied upon to suggest cordial relations during the relevant period.
• Opposing the plea, senior advocate Jal Unwalla, representing the complainant, described the allegations as “grave and shocking”, involving repeated physical violence, sexual assault, and criminal intimidation over a prolonged period.
• He argued that the delay in lodging the FIR was adequately explained by the trauma faced by the complainant and the social stigma attached to reporting sexual abuse within marriage.
• Additional Public Prosecutor Sonam Joshi also highlighted the need for custodial interrogation to recover electronic evidence, personal belongings, and to prevent tampering with crucial material.