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Business News/ News / India/  Marital rape: Man can't be charged if wife Is 18 or above, says Allahabad high court
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Marital rape: Man can't be charged if wife Is 18 or above, says Allahabad high court

While acquitting a husband under section 377 of IPC for allegedly committing 'unnatural sex' with his wife, the Allahabad High Court has observed that ‘protection of a person’ from being charged in ‘marital rape continues in cases where the wife is of 18 years of age or more’

In 2017, the Supreme Court held that any sexual intercourse between a man and his wife aged between 15 to 18 years would amount to rapePremium
In 2017, the Supreme Court held that any sexual intercourse between a man and his wife aged between 15 to 18 years would amount to rape

While acquitting a husband under section 377 of IPC for allegedly committing 'unnatural sex' with his wife, the Allahabad High Court has observed that "protection of a person" from being charged in "marital rape continues in cases where the wife is of 18 years of age or more," news agency PTI reported on Sunday.

The bench of Justice Ram Manohar Narayan Mishra said that marital rape has not been criminalized in the country as yet. However, the same petitions are pending for consideration before the Supreme Court for criminalizing marital rape, as currently there is no criminal penalty for marital rape when the wife is of or above 18 years of age.

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The bench also referred to the judgment in the case of Independent Thought Vs Union of India (2017) where the Supreme Court had held that any sexual intercourse between a man and his wife aged between 15 to 18 years would amount to rape.

Justice Ram Manohar Narayan Mishra, while acquitting the husband under section 377 of IPC for allegedly committing 'unnatural sex' with his wife, noted that "ingredients of unnatural sex, comprised under Section 377 IPC are included in Section 375 (a) IPC as observed by the High Court of Madhya Pradesh".
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In its order, the MP High Court had opined that Section 375 IPC related to rape (as amended by the 2013 Amendment Act) includes all possible parts of penetration of the penis. When consent for such an act is immaterial, then there is no scope for the offence of Section 377 IPC to get attracted where husband and wife are involved in sexual acts. 

"Thus, on perusal of aforesaid judgement also it appears that protection of a person from marital rape still continues in the case where the wife is of 18 years of age or more than that," PTI quoted the high court ruling.

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The court, however, affirmed his conviction and sentence for charges under section 498A (harassment for dowry) and 323 of the Indian Penal Code. 

In 2013, an FIR was lodged against the man under sections 498A, 323, 504 and 377 of IPC and also under the Dowry Prohibition Act in Ghaziabad. The trial court at Ghaziabad convicted him and the appellate court also upheld the findings after which he moved the revision petition.

The high court noted that there was no factual or legal error in the finding of guilt recorded by the appellate court as regards the charge under section 323, 498-A IPC.

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Besides noting that the medical evidence in the case was not supportive of allegations of commission of unnatural sex, the court in this judgment dated December 6 said, "In the proposed Bhartiya Nyay Sanhita which is likely to replace IPC, no provision like Section 377 IPC is included therein."

"The charge of committing matrimonial cruelty against the revisionist is proved in this case and the same is corroborated by the findings of the family court while decreeing the divorce petition and this court in appeal while affirming the decree of divorce against the revisionist," the ruling said.

 

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Published: 11 Dec 2023, 12:12 AM IST
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