Marital Rape Not Yet A Crime If Wife Is Aged 18 Or Above; Section 377 IPC Also Cannot Be Invoked: Allahabad HC

The Allahabad High Court observed that Marital Rape is not yet criminalized in India if the wife is aged 18 or above.

The court observed thus while it acquitted a husband accused of committing "unnatural sex" under Section 377 of the Indian Penal Code, 1860 (IPC) against his adult wife.

 The Court partially granted a revision filed by a husband challenging the Appellate Court's conviction order, wherein he was convicted for charges under section 498-A, 323, 377 of the Indian Penal Code, 1860 (IPC) and acquitted for section 4 of the Dowry Prohibition Act, 1961 (DP Act).

The Bench of Justice Ram Manohar Narayan Mishra observed, “Thus, on perusal of aforesaid judgement also it appears that protection of a person from marital rape still continues in the case where wife is of 18 years of age or more than that. Ingredients of unnatural sex, comprised under Section 377 IPC are included in Section 375 (a) IPC”.

Advocate Arvind Kumar Singh appeared for the Revisionist, Advocate Nitin Gupta appeared for the Respondents and Advocate VP Srivastava appeared as Amicus Curiae.

The Prosecutrix (Second Respondent) filed an FIR accusing the Revisionist (Accused) of offences under sections 498-A, 323, 504, and 377 of the IPC, along with sections 3 and 4 of the DP Act. Allegedly, after marriage, the Revisionist subjected her to cruelty, demanding a Fortuner car and Rs. 40 lakhs cash as dowry, leading to mistreatment and abuse. The Trial Court convicted the Accused on various charges, including section 377 IPC. The Appellate Court affirmed the conviction for charges under section 498-A, 323, 377 IPC, while the conviction for section 4 of the DP Act was set aside. Notably, the sentence for the charge under section 377 IPC was reduced from five years to four years of rigorous imprisonment. Aggrieved, the Accused/Revisionist approached the High Court challenging the order of the Appellate Court.

The Court, emphasizing the restrictive nature of revisional jurisdiction under Section 397 of the Criminal Procedure Code (CrPC), stressed its role in rectifying miscarriages of justice. The Court clarified that revision is not a right but a procedural tool and should focus on ensuring the legality and propriety of findings, refraining from an extensive reconsideration of the evidence.

Additionally, the Court observed the 2013 amendment broadened the definition of rape in light of the POCSO Act, 2012. The Court noted that marital rape is not criminalized in India, particularly when the wife is 18 years or older. The Court also acknowledged ongoing petitions seeking criminalization but highlighted the absence of penalties in the legal framework.

Addressing cases involving wives below 18 years, the Court noted the applicability of Section 198(6) and observed that allegations of unnatural sex emerged later in legal proceedings. The Court reiterated that protection against marital rape for wives aged 18 or older, emphasizing the inclusion of elements of unnatural sex under Section 377 IPC in Section 375 (a) IPC. The Court affirmed the charge of matrimonial cruelty based on findings from lower courts.

Additionally, the Court reiterated that protection against marital rape persists for wives aged 18 years or older, noting that elements of unnatural sex under Section 377 IPC are included in Section 375 (a) IPC. The Court affirmed the charge of matrimonial cruelty, citing findings from the family court and the affirming appeal court decree.

Despite the allegations, the Court noted that medical evidence did not support claims of unnatural sex, as no relevant examination was conducted.

Accordingly, the Court partly allowed the Revision.

Cause Title: Sanjeev Gupta v State Of U.P. And Anr. (2023:AHC:231653)

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