Forcible Sexual Intercourse Between Legally Married Husband & Major Wife Cannot Be Considered As Rape: Gauhati High Court
The Gauhati High Court, while acquitting a husband in a rape case, observed that forcible sexual intercourse with a major wife cannot be considered rape.
The Court was hearing an appeal against the Judgment and order passed by the ASJ where the accused/ appellant was convicted u/s 376 IPC.
The bench of Justice Malasri Nandi observed, “…the appellant and the victim being legally married husband and wife, the victim being major, the sexual intercourse between the two, if forcible, cannot be considered as rape.”
Advocate AN Ahmed appeared for the Appellant.
Brief Facts-
An FIR was lodged by the informant reporting that his daughter had gone missing. It was discovered that the Appellant had kidnapped her. The victim was found at the appellant's house. A case was registered under Sections 366, 342, 376, and 34 of the IPC, and after investigation, a charge sheet was filed. He was charged under Sections 366, 343, and 376 of the IPC, to which he pleaded not guilty. Seven prosecution witnesses were examined, and after the trial, the Appellant was convicted by the trial Court.
The Court mentioned the decision in Wahid Khan vs. State of Madhya Pradesh, reported in 2010 (68) ACC 266 where it was held that, “rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. So the physical assault on the victim was a rape or not is to be decided by the court on the basis of evidence on record.”
“Whether the said victim was abducted or kidnapped with the intent of compelling her to marry any person against her will or that she may be forced or seduced to illicit intercourse and whether the physical assault on the victim comes under section 375 of I.P.C. is to be looked into and the evidence is to be scrutinized to come to a definite conclusion.”, the Court observed.
The Court noted that coercive and non-consensual intercourse by a husband with his wife (above 15 years of age) is outside the ambit of rape.
Accordingly, the Court set aside the impugned judgment and order of the trial Court and acquitted the Appellant on the benefit of the doubt.
Finally, the Court allowed the Criminal Appeal.
Cause Title: Farid Ali v. State of Assam (Neutral Citation: GAHC010219952023)
