Sexual intercourse, including unnatural act, by a man with his adult wife, even without her consent, can not be treated as an offence, the Chhattisgarh high court held while acquitting a Jagdalpur resident who was convicted of rape and other charges.
Justice Narendra Kumar Vyas made the observations while acquitting the man, who was arrested in 2017 and convicted by a trial court in Bastar district of charges under Indian Penal Code sections 376 (rape), 377 (unnatural sex) and 304 (culpable homicide not amounting to murder) after the death of his wife.
The judgement in the case was reserved by the court on November 19 last year and delivered on Monday (February 10).
If the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape as such absence of consent of wife for unnatural act loses its importance, the single bench judge noted.
As per the prosecution, the man, a resident of Jagdalpur, the headquarter of Bastar district, 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 December 11, 2017, the woman complained of pain and told her family members that her husband allegedly committed unnatural sex with her against her will.
Dying declaration of the victim was recorded before the magistrate wherein she has made a statement that due to 'forceful sexual intercourse' by her husband she became ill, it said.
On February 11, 2019, the Additional Sessions Judge (Fast Track Court or FTC) at Jagdalpur convicted the man under sections 377, 376 and 304 of the IPC and sentenced him to rigorous imprisonment for 10 years.
The man later approached the HC in Bilaspur challenging the lower court's judgement.
During hearings, the counsel for the man submitted that there was no legally admissible evidence available on record against the appellant and only on the basis of the victim's statement, his client has been convicted for multiple offences.
He contended the trial court had not considered the statements of two witnesses who told the court in Jagdalpur the woman was suffering from piles soon after her first delivery, on account of which she used to bleed and experience pain in the abdomen.
He termed the trial court's reliance on the dying declaration as 'doubtful'.
The counsel appearing for the state government supported the impugned judgment of the trial court and prayed for dismissal of the appeal against the conviction and sentence.
The HC, in its order, stated, 'from perusal of sections 375, 376 and 377 of IPC it is quite vivid that in view of amended definition of Section 375 IPC, offence under Section 377 IPC between husband and wife has no place and, as such rape cannot be made out'.
It is pertinent to mention here that in the amendment in section 375 IPC in the year 2013, exception- 2 has been provided which speaks that sexual intercourse or sexual acts by a man with his own wife is not a rape. Therefore, if any unnatural sex, as defined under section 377, is committed by the husband with his (major) wife, then it can also not be treated to be an offence, the HC noted.
It is quite vivid that Section 377 (unnatural sex) is not well equipped and offender is not defined therein but body parts are well defined, which are also included in Section 375 ( carnal intercourse against the order of nature), the HC observed.
The five- judge Bench of the Hon'ble Supreme Court in Navtej Singh Johar (case), while testing the constitutionality of said provision, has held that some parts of Section 377 are unconstitutional and finally held that if unnatural offence is done with consent then offence of Section 377 IPC is not made out, it said.
In the light of amended definition of Section 375 and the relationship for which exception provided for not taking consent - ie between husband and wife -- and not making offence of section 376, it is quite vivid the definition of rape as provided under Section 375 for which consent is not required then unnatural sex cannot be made as unnatural offence between husband and wife, the HC said.
As per the definition of Section 375 of IPC, the offender is classified as a 'man'.
The appellant is a 'husband' and victim is a 'woman' and here she is a 'wife' and parts of the body which are used for carnal intercourse are also common.
Therefore, the offence between husband and wife cannot be made out under Section 375 IPC as per the repeal made by way of amendment and in view of repugnancy between both the sections, it said.
'Thus, it is quite vivid, that if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance.
'Therefore, this court is of the considered opinion that the offence under Section 376 and 377 of the IPC against the appellant is not made out,' it said.
On the man's conviction under IPC Section 304 IPC, the HC deemed it "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 which deserves to be interfered with by this court,' the HC observed.
The judge acquitted the man of all charges and ordered his immediate release from jail.
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