Bilaspur (Chhattisgarh), August 30: In a judgment by Chhattisgarh High Court which has created some controversy, a single judge bench ruled that forced sexual act with one’s own wife cannot be deemed rape. However, the HC did not grant any relief to the man who was also charged under IPC section 377 (unnatural offences) and 498A and he is still under judicial custody.

Even though many in media and political circles like Mahua Moitra, Taapsee Pannu and Saayoni Ghosh feel that the judgment might be flawed, most women’s rights activists feel that this shows that there is an urgent need for public debate on the issue since there cannot exist an absurd legal distinction between the rights of a wife below 18 years, and one above that age.

But Flavia Agnes, eminent lawyer and Human Rights Activist working for decades on Women’s Rights, talking to the Lifenews correspondent said, “I feel that the judge was not wrong in not applying the law because judges cannot put words in the statutes, so since the section is clearly worded – it is the legislature that has to change it. The legislature should bring in the amendment and that has not yet happened.”

Also Flavia questioned the intent and competence of the police because the charge-sheet was written by them and since there is no statutory provision for marital rape, why did they use those sections? “It should have been charged under the Domestic Violence Act, apart from 498-A, since all forcible sexual act or violence constitutes cruelty, and domestic cruelty could have been addressed by using the Domestic Violence Act.”

A single bench of Justice NK Chandravanshi in Chhattisgarh High Court acquitted the 37-year-old man in a rape case filed against him by his wife. While interpreting the statutes governing rape, the court adjudicated that sexual intercourse between legally married men and women is not rape, even if it is without the consent of wife.

On August 23, the order was issued in a revised petition filed by the husband and his family members on charges against the man in a trial court, and were made public on Wednesday.

The definition of rape as per section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual and consensual intercourse with a woman. However, Exception II to section 375 exempts unwilling sexual intercourse between a husband and wife over 18 years of age from section 375’s definition of ‘rape’ and thus immunises such acts from prosecution.

As per the complaint, the married man hails from Changorabhata in Raipur. In 2017, soon after their marriage the woman’s husband and her two in-laws allegedly started harassing her for dowry. When she could not bear the pressure, the woman approached the Bemelara police station and registered a complaint against the three of them.

The police prepared a charge-sheet after investigations under section 498-A (dowry harassment), 376 (rape), 377 (unnatural offences), and others of IPC. Based on this, the woman’s husband and her in-laws approached the High Court seeking to set aside the order of the trial court and acquit them.

“In this case, the complainant is legally wedded wife of applicant, therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, charge under Section 376 (rape) framed against the applicant’s husband is erroneous and illegal,” the High Court said in its order.

Since, in India “marital rape” is not recognised and the same is not an offence in view of Exception II of Section 375, the judge further stated, “Exception II of section 375 of IPC makes it clear that sexual act or sexual intercourse by a man with his legally wedded wife, the wife not being minor (under 18 years of age) is not a rape.” Hence, he is entitled to be acquitted from the charge under Section 376 of IPC.

There has been a long debate in India over the definition of marital rape; but people supporting the two sides have not been able to find common ground.

Women's rights activists have been demanding a law on marital rape for a long time and they feel that the rights of women should not be based only on their age. However, due to its complexity, no consensus has been found in India this far. A section believes that such a law can create new problems in a traditional society like India. Apart from this, questions have also been raised about how marital rape will be decided. Many feel that there is no political will to enact such a law – considering their repercussions mainly from orthodox patriarchal communities.

One of the news which appeared in various newspapers in October 2014, quotes a report mentioning that only one percent of the marital rape is reported in India. A National Family and Health survey of 2018 suggests that the absence of strong law against marital rape is the primary factor behind low reporting of the cases.

Prashant Bhushan, Public Interest Lawyer and Activist while addressing the said judgment says, “Sexual intercourse or any sexual act by husband with legally wedded wife not rape even if it was by force or against her wish: Chhattisgarh HC! Ridiculous! Marriage is a license to rape wife?!”

However, Flavia does not support “criminalising marital rape”, she says “firstly it will be very difficult to prove it and secondly, ascribing a higher pedestal to the rape and ignoring or relegating other physical, psychological or economic abuse below it – while one offence attracts seven years and the other only three years is skewed and not logical. Hence I feel we need to have a much more complex framework to understand sexual violence within marriage.”