The Chhattisgarh High Court recently ruled that a husband cannot be held guilty of rape under Section 375 of the Indian Penal Code (IPC) or of an unnatural offense under Section 377 for engaging in non-consensual anal sex or any other non-consensual sexual act with his adult wife.
Justice Narendra Kumar Vyas relied on Exception 2 to Section 375 of the Indian Penal Code (IPC), which states that sexual intercourse or sexual acts by a man with his own wife do not constitute rape, provided the wife is not below 15 years of age.
"From perusal of Section 375, 376 and 377 IPC it is quite vivid that in view of the 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 important to note that the 2013 amendment to Section 375 IPC established Exception-2, which states that sexual acts or sexual contact between a man and his own wife are not considered rape. As a result, the Court held that any unnatural sex between a husband and wife, as defined by Section 377, cannot be considered an offense.
In light of the above, the Court acquitted a man who had been convicted of rape, unnatural offence, and causing the death of his wife due to his sexual act of inserting his hand into her rectum.
The accused, Gorakhnth Sharma, had allegedly inserted his hand in the anus of the victim, his wife.
She later complained of pain and was admitted to hospital where she passed away.
Before her passing, her dying declaration was recorded, in which she stated that she fell ill due to the unnatural sexual act committed by her husband.
Based on this, the husband was charged under Section 375 (rape), Section 377 (unnatural offence), and Section 304 (causing death by negligence) of the Indian Penal Code.
The doctor who conducted the post-mortem concluded that the cause of death was peritonitis and rectal perforation.
During the trial, some witnesses turned hostile. Additionally, the Executive Magistrate who recorded the deceased’s dying declaration stated in court that, although she had informed him that her husband had forcibly committed an unnatural sexual act, this detail was not included in the recorded declaration.
Relying on the available evidence and the dying declaration, the trial court convicted Sharma under Sections 375, 377, and 304 of the IPC, sentencing him to ten years in prison.
This led to the appeal before the High Court.
The counsel for the accused argued that the conviction was based solely on the dying declaration, the authenticity of which was questionable. It was further contended that the trial court overlooked the statements of two witnesses who had testified that the victim had been suffering from piles since her first delivery, which often caused bleeding from her anus and abdominal pain.
On the other hand, the counsel for the State opposed the appeal, asserting that the trial court had correctly convicted the accused based on the evidence, and no interference was warranted.
After reviewing the arguments and evidence, the Court analyzed Sections 375 and 377 of the IPC.
It observed that under Section 375, rape includes the penetration of the penis into any body part, such as the vagina, urethra, or anus of a woman. However, Exception 2 to this provision explicitly exempts such acts from being classified as rape if they occur within a marital relationship, even in the absence of consent.
"It is quite vivid that the definition of rape as provided under Section 375 includes penetration of penis in the parts of the body i.e. vagina, urethra or anus of a woman for which consent is not required then unnatural sex cannot be made as unnatural offence between husband and wife, as such apparently, there is repugnancy in these two situations in the light of definition of Section 375 and unnatural offence of Section 377," the High Court said.
"If the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with her 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," the Court underscored.
Regarding the dying declaration, the Court stated that it was not corroborated by any other evidence, casting doubt on its reliability as the sole basis for conviction.
"The careful scrutiny of the dying declaration by this Court itself the same cannot be found to be sufficient for recording of the conviction as there is no corroboration from other evidence, as such there is doubt over the correctness of the dying declaration," the judgment stated.
Regarding the conviction under Section 304 of the IPC, the High Court noted that the trial court had failed to provide any reasoning for how the offense was applicable in this case. As a result, the Court concluded that the conviction under Section 304 was perverse and patently illegal.
In light of this, the appeal was allowed, and Gorakhnath Sharma was acquitted of all charges.
Advocate Raj Kumar Pali represented the accused, while Deputy Government Advocate Pramod Shrivastava appeared for the State.
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