Recently, Chhattisgarh High Court observed that sexual intercourse or any sexual act by husband against the will of the legally wedded wife who is not under 18 years of age, does not constitute rape. The High Court discharged a man from the offence of marital rape & abuse after relying on Exception II of Section 375 of Indian Penal Code (IPC), 1860. Justice N.K. Chandravanshi, pronounced the order in a case which involves a woman married in 2017 and alleging harassment for dowry, physical abuse and rape.
The High Court said that the charge framed under Section 376, IPC against the man is erroneous and illegal. However, the court has framed charges for unnatural sex with the woman under Section 377 of IPC. Court also framed charges under Section 498-A of IPC (atrocities on women for dowry) as the written report and statements of the wife showed that after a few days of marriage, the wife was subject to cruelty on demand of dowry.
Earlier in the month of August 2021 only, Kerala High Court stated marital rape is a ground to claim divorce and marital rape was recognised as form of cruelty.
LET’S DISCUSS THE LAW!
Section 375, 377 & 498-A of IPC are relevant to be discussed in the current legal news from CLAT’s perspective.
1. Section 375, IPC
It defines rape as “sexual intercourse with a woman against her will, against her consent, by coercion, misrepresentation or fraud or when she is intoxicated or is of unsound mind or if she is under 16 years of age irrespective of whether she gives her consent or not”.
When a woman gives her consent under coercion, misrepresentation or fraud – it does not constitute as a valid consent. When the man knows that he is not the husband of the woman and he knows that the woman has consented, believing him to be her husband – it is rape.
Similarly, when a woman is so intoxicated or under unsoundness of mind, is unable to understand the nature and consequences of what she has consented for, it amounts to rape.
If a woman is above 18 years, marital rape is an exception under this section and is not a sexual assault or rape as defined under exception 2 to section 375. It says that the wife should not be under 15 years of age.
To constitute sexual intercourse under this section, penetration is sufficient for constituting rape. 2013 Criminal Amendment Act, expanded this definition of sexual intercourse to penetration of penis into vagina, urethra, anus or mouth. it includes penetration of any object or any part of the body into the woman body parts (or asking another person to do so) is also sexual intercourse for rape.
1.1 Punishment for rape
Imprisonment for not less than seven years which may extend to life imprisonment with fine. In case of aggravated situations, punishment will be from 10 years (at least), which may extend to life imprisonment, with fine.
2. Section 377, IPC
It defines unnatural offences to have carnal intercourse (penetration is enough) with a man, woman or animal, which is against the order of nature. Punishment for a term which may extend to 10 years, or life imprisonment (in aggravated cases) and shall also be subjected to fine.
Although, Supreme Court in 2018 unanimously held Section 377 as unconstitutional and struck down criminalisation of same sex relations between consenting adults in the case of Navtej Singh Johar vs. Union of India.
3. Section 498-A, IPC
It defines cruelty against women for demand of dowry by husband or relatives of husband. Punishment with imprisonment for a term which may extend to three years and fine. Cruelty in this section means, any act or conduct which causes the woman to commit suicide or any grave injury, danger to life, limb or health (including both mental and physical). Cruelty also includes harassment of a woman to coerce her for unlawful demand of any property, valuable security in form of dowry.
Marital rape or exception 2 of Section 375, IPC is in violation of Article 14 (right to equality), Article 21 (right to life & privacy, dignity, health, etc.) of the Indian Constitution and must be struck down.
2. Business Standard, https://www.business-standard.com/about/what-is-section-375
3. Supreme Court Observer, https://www.scobserver.in/court-case/section-377-case
4. Navtej Singh Johar vs. Union of India
ANSWERS TO OUR PRACTICE PASSAGE ON YOUTUBE
- C; As per exception clause in Section 375, sexual intercourse by a man with his own wife, with the wife not being under 15 years of age, is not considered rape. The Supreme Court has read this down to 18 years.
- B; As per exception clause in Section 375, sexual intercourse by a man with his own wife, with the wife not being under 15 years of age, is not considered rape. The Supreme Court has read this down to 18 years.
- B; India is one of the 36 countries in the world where marital rape is not criminalised.
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