Bilaspur: The Chhattisgarh High Court set aside a trial court convicting a husband for rape and unnatural sex with his wife, who later died, saying if the age is a major, then any sexual intercourse or sexual act by the husband with her wife cannot be termed as rape and absence of consent of wife for unnatural act loses its importance in view of the Exception 2 to section 375 (rape) of the Indian Penal Code (IPC).
Justice Narendra Kumar Vyas acquitted the husband while hearing an appeal filed by him against the trial court order convicting and awarding him ten years of rigorous imprisonment for the offences under sections 375, 377 (unnatural sex) and 304 (causing death by negligence) of IPC.
If age of wife is not below 15 years, then any sexual act by husband with his wife cannot be termed as rape: High Court
“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 High Court said.
What was the prosecution case?
As per the prosecution, the appellant husband committed unnatural sex with the victim against her will and thereafter he left her there and went to work. It was alleged that the appellant husband inserted his hand in the anus of the victim due to which the victim complained pain and was admitted to a hospital and later she died leaving a dying declaration.
While the counsel representing the husband submitted that there is no legally admissible evidence available on record against him and only on the statement of victim, the appellant husband has been convicted, the counsel representing the State submitted that the prosecution has brought home the offence against the appellant husband and has proved the case beyond reasonable doubt and thus the he has rightly been convicted and sentenced for the offence.
High Court relied on Exception 2 to section 375 of IPC
The High Court relied on the Exception 2 to section 375 of IPC, according to which sexual intercourse or sexual act by a husband with his his major wife is not rape.
“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 High Court said.
High Court also set aside conviction under section 304 of IPC
Regarding appellant husband’s conviction under section 304 of IPC, the High Court said that the trial court has not recorded any finding how the offence under section 304 of the IPC is attracted to the present facts of the case and proved by the prosecution and still it has convicted the appellant husband under section 304 IPC which is nothing but perversity and patent illegality.
