If a husband has unnatural sex with his wife against her will, a criminal case of sexual offense can be registered against him. There has been a long-standing difference of opinion in the interpretation of Indian laws and courts on this matter. Within the last few months, three different High Courts of the country have given four different decisions on this question. In such a situation, a situation of controversy and confusion has arisen on whether such actions of the husband against the wife should be considered a criminal and rape case or not.
In fact, there has been a debate going on in India for a long time regarding marital and non-consensual sexual relations between husband and wife. Under the provisions of the old IPC, rape was defined in Section 375, but it also included an exception. According to this, if the age of the wife is more than the prescribed limit, then sexual intercourse with her by the husband will not be considered rape under normal circumstances.
What changes did the Supreme Court make in Section 377 of the IPC in the year 2018?
However, earlier Section 377 of IPC was applicable in cases related to unnatural sexual relations. But during the year 2018, the Supreme Court removed consensual homosexual relations from the category of crime in this case. But Section 377 was allowed to remain in force on unnatural sexual relations without consent or forcefully. But now 4 decisions of 3 different courts of the country regarding such actions of the husband are creating confusion.
Which section of BNS can be applicable in case of unnatural sex with wife?
At present, BNS section is applicable in the country instead of IPC. The earlier section (IPC 377) related to ‘unnatural sex’ has been completely removed in BNS.
Now under the new law, if a husband forcibly has unnatural sex against the will of his wife, then it comes under section 85 and 86 of the Indian Justice Code (BNS). However, the husband still enjoys legal immunity under Section 63 (Exception 2) of the BNS in case of sexual intercourse without the consent of the adult wife.
Four High Courts, 4 different decisions
- Madhya Pradesh High Court recently gave a decision that if a husband has unnatural sex with his wife, then he cannot be prosecuted under Section 377 on this basis alone. The court says that there is a legal position regarding such relations within marriage. That a case of unnatural sex cannot be prosecuted against the husband by ignoring the marital exception present in Section 375.
- Chhattisgarh High Court, while hearing a case, had said that unnatural sexual intercourse by the husband against the will of the wife cannot be considered a crime under Section 377 of the IPC. The court said that if the marriage is valid, then the husband cannot be prosecuted under Section 377 merely because he does so.
- Allahabad High Court, while hearing a case, had said that it is wrong to give legal protection to unnatural sexual relations within marriage without consent. Criminal sections should be applied in such cases. The victim should not be deprived of the help and protection of the law.
- The Punjab and Haryana High Court, while hearing a case, had said that if a husband has unnatural sexual relations with his wife against her will. This can be considered “cruelty” under section 498A of the IPC. The court said that such behavior with the wife could fall in the category of domestic violence and mental-physical harassment.
Now there will be Supreme hearing
4 different decisions of 3 different courts have raised many difficult questions before the Supreme Court. A situation of confusion has arisen. In such a situation, the Supreme Court has agreed to consider a new and important legal question. The court will hear the matters related to this on September 9. The hearing could determine new interpretations of laws related to women’s physical autonomy, dignity and marital rights.
What will the Supreme Court have to decide in this matter?
Now the Supreme Court will have to decide whether unnatural sexual relations within marriage against the will of the wife can be considered a crime. If it can be considered, then under which legal provision. Apart from this, they will also have to decide whether the interpretation of marital exception given in Section 375 will remain the same as before. Will only Section 498A be applicable in such cases or will other criminal provisions also be applicable? What will be the legal status of these cases after the implementation of BNS?
What will be the effect of the Supreme Court’s decision?
Now, whatever order the Supreme Court gives in this regard, it will affect the ongoing police investigation, trial court hearing and legal interpretation of marital rights in such cases across the country. If the Supreme Court gives clear guidelines, then the contradictory orders going on in different High Courts on unnatural sexual relations between husband and wife after marriage will stop.
Leave a Reply