In another ruling which may hamper the awareness of marital rape further, the Chhattisgarh HC today ruled that – “sexual intercourse by husband – even if forced – is not rape”. The ruling must not come as a surprise to people as earlier this year, India’s former Chief Justice S.A. Bobde in the Supreme Court had observed, “However brutal the husband is…when two people (are) living as husband and wife… can sexual intercourse between them be called rape?”
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Trigger Warning: Sexual Assault, Sexual Abuse, Rape
Marital rape in India remains a much-debated topic in India. Not only because of the stigma and years of case baggage around it, but also, because India remains one of the only 36 countries in the world where marital rape is still criminalized.
Marital Rape – Criminalized by Nepal, Ghana, Afghanistan, India Still Awaited
To give our readers some context countries that may not be as developed like Nepal, Ghana, Liberia &Nigeria have criminalized marital rape. And India joins the rank of countries like Afghanistan, Haiti & Syria that have still to criminalize marital rape.
Recently, the Kerala HC gave a landmark ruling where it observed that marital rape can be a solid ground for going for a divorce. While it may not be a watershed moment for the issue, it certainly could have positive consequences in future. However, a Chhattisgarh HC gave another ruling, which shares India’s own status when it comes to marital rape.
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The Facts of the Matter
On Thursday, August 26, the Chhattisgarh HC acquitted a man who was facing a trial for raping his wife – on the account of the fact that the Indian constitution does not consider marital rape, if the spouse of the husband is over 15 years.
Chhattisgarh HC Justice N.K. Chandravanshi took cognizance of an exception that comes under Section 375 of the IPC, which goes on to say that, “sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
“Even if it Was by Force or Against Her Wish…”
The judge was quoted by an India Today report saying, “In this case, complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish.”
Although the man was acquitted for the Section 376 (punishment for rape) charges and the charges were labelled as “erroneous” and “illegal”, the Chhattisgarh High Court did uphold two other charges – Section 377 (unnatural offences) and Section 498A (relating to cruelty to women) against the man.
This came because of the fact that the wife also told the court that she was reputedly subjected to cruelty, husband and dowry harassment. Further, she also alleged that his husband inserted a radish in her vagina and thus formed unnatural physical relations with her.
To this, the court observed, “dominant intention of the offender is to derive unnatural sexual satisfaction, repeatedly insert any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a carnal intercourse against the order of nature,” sustaining charges of Section 377.
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99.1% Sexual Assault Cases Underreported
It should be noted that according to a National Family Health Survey, 80,000 women participated in a survey in 2005-06. Out of these, 93% of them claimed to have been sexually abused by their current or former spouses.
Another survey, conducted in 2015-2016 painted similar tragic picture which said that 99.1% of the sexual assault cases were underreported in the country.
