Marital rape is not a criminal offence yet, but it should be: Gujarat HC

The Gujarat High Court on Monday ruled that marital rape is not a criminal offence under Section 375 of the Indian Penal Code. As such, a man can't be prosecuted to have raped his wife. The High Court, however, underlined the importance of criminalising it, saying the "destructive attitude" that promotes rape in a marriage can be removed only by making marital rape "illegal".

Justice Pardiwala, however, said that a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the IPC. Subjecting his married partner to have oral or unnatural sex was akin to cruelty, the judge concluded.

Quoting and citing previous judgments, the court observed that though a husband had the right to have sex with his legally wedded wife, she was not his property and it should not be without her consent.

However, Justice Pardiwala cited Section 375 of the IPC as an exception: “(A man is said to have committed rape) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.”