The Chhattisgarh High Court recently held that non-consensual anal sex or any other non-consensual sexual act committed by the husband on his major wife is not an offence and the husband cannot be held liable for rape under Section 375 or unnatural offence Section 377 of the Indian Penal Code (IPC) for the same
Justice Narendra Kumar Vyas relied on Exception 2 to Section 375 of IPC which lays down that sexual intercourse or sexual acts by a man with his own wife is not 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 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 and therefore if any unnatural sex as defined under section 377 is committed by the husband with his wife, then it can also not be treated to be an offence,” the Court held.
In light of the above, the Court acquitted a man who was convicted for rape, unnatural offence and causing death of his wife through his sexual act of inserting his hand up the rectum of his wife.
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 wherein she stated that due to unnatural sexual act committed by her husband, she became ill.
The husband was booked for rape (Section 375), unnatural offence (Section 377) and causing death by negligence (Section 304) of the Indian Penal Code.
The doctor who conducted the post mortem opined that the cause of death was due to peritonitis and rectal perforation.
Some of the witnesses later turned hostile and the Executive Magistrate who recorded the dying declaration of the deceased said in court that though the deceased informed him that her husband had done forceful unnatural sexual act with her, the same was not mentioned in the dying declaration.
The trial court after considering the evidence and placing reliance on the dying declaration, found Sharma guilty of offences under Sections 375, 377 and 304 of IPC and sentenced him to ten years in prison.
This led to the appeal before the High Court.
The counsel for the accused submitted that the conviction was based solely on the dying declaration and the authenticity of the same itself was doubtful. It was also submitted that the trial court did not consider the statements of two witnesses who admitted in their court statements that the victim was suffering from piles soon after her first delivery, on account of which there used to be bleeding from her anus and pain in abdomen.
The counsel for the State opposed the plea and said that the trial court correctly convicted the accused based on evidence and the same does not require any interference.
After considering the arguments and the evidence, the Court examined Sections 375 and Section 377.
The Court noted that rape under Section 375 includes penetration of penis on any body part vagina, urethra or anus of a woman. However, any such act between husband and wife will not be rape even in the absence of consent, since the same is specifically excluded by Exception 2.
“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.
Thus, when such an act cannot be an offence under Section 375, the same cannot also be an offence under Section 377 IPC.
“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.
With respect to the dying declaration, the Court said that the same was not corroborated by any other evidence.
“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.
As regards conviction under Section 304 IPC, the High Court said that the trial court had not recorded any finding as to how the offence was attracted in the present case.
Hence, the conviction under Section 304 is perverse and patently illegal, the Court held.
In view of the above, the appeal was allowed and Sharma was acquitted of all offences.
[Gorakhnth Sharma v. State of Chhattisgarh].
