On the highly controversial issue of marital rape, the Gujarat High Court passed the judgment that a wife cannot file marital rape complaint against husband in case of non-consensual sex. Justice J B Pardiwala observed that if the wife is older than 18 years of age, then her consent in intercourse does not matter according to law.

He added that if the husband commits rape on his wife, then it is not a cognizable offence under IPC Section 375, which defines rape. Justice Pardiwala goes on to express grief over the law that does not allow a woman to put her husband through a trial for rape. He asked for a legal provision so women are able to do so.

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The judge went on to refer to provisions for marital rape across the world. He suggested that the legislature must criminalize marital rape. The HC stresses on the fact that even the thought of its misuse by “unscrupulous women” must not deter the lawmakers to enact legislation in India and as marital rape is rampant.

Justice Pardiwala goes on to express grief over the law that does not allow women to put her husband through a trial for rape. He asked for legal provision so women are able to do so

Pardiwala states that a wife can prosecute her husband in a case of unnatural sex under Section 377, but consent is not a decisive factor in the case. Under Section 377 intercourse which is against the law of nature will constitute cognizable offence.

But in non-consensual sex between husband and wife, “except the sexual perversions of sodomy, buggery and bestiality, all other sexual perversions would not fall within the sweep of Sec 377 of the IPC”, the HC said. He further commented that if a wife charges her husband of forceful oral sex, it wouldn’t come under sodomy. The judge added that forcing a wife to have sex would attract the charge of outraging the modesty of woman under IPC Sec 354.

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