No marital-rape, but oral-sex is 'cruelty': Gujarat High Court
Indian laws do not acknowledge 'marital rape' if the woman is aged over 18, meaning husbands can legally have forced sex with their wives. Lamenting this, Justice JB Pardiwala of the Gujarat HC quashed a similar case, but offered other suggestions women could go for. For example, forced oral sex can be defined as 'cruelty' and 'unnatural sex,' which is illegal under other sections.
The case that brought the issue into focus
Justice Pardiwala was hearing the case of a doctor who accused her husband, also a medical professional, of forcing her for sex. He would subject her to oral sex and "unnatural sexual activities" without her consent, and torture her for dowry, she said. But the judge noted that forced sex by a husband isn't a punishable offense under Section 375, which defines rape.
Women can use Section 377, but even that has conditions
However, similarly victimized women have options, Pardiwala said. She could take her husband to court for "unnatural sex" under Section 377, where 'consent' doesn't play a role. There's still a difference in how "unnatural sex" is defined within marriage and outside. Among husband-wife, "except sodomy, buggery and bestiality, all other sexual perversions would not fall within the sweep of Section 377," the HC observed.
Section 498(A) for cruelty and Section 354 for sexual harassment
A husband forcing his wife for oral sex, in this case, then falls under Section 498(A)- husband and relative subjecting a woman to 'cruelty.' Meanwhile, forcing the wife for sex can fall under Section 354 instead, which defines sexual harassment, including "outraging the modesty of a woman." "Making marital rape illegal will remove the destructive attitudes that promote the marital rape," the judge noted.
But many laws are positively biased towards women
However, torture and dowry laws are widely considered biased towards women, since earlier provisions allowed immediate arrest of the accused without probe. This had led to a high number of "false cases" by women, the SC noted last year, ordering investigators to conduct probes before making arrests. It agreed women are often victims, but "violation of human rights of innocent cannot be brushed aside."
In this case, husband booked for sexual harassment, cruelty
In this case, the HC ordered dropping of charges of rape and unnatural sex against the doctor, asking police to probe him for sexual harassment and cruelty. It ordered investigators to examine if a dowry case was made out before adding related clauses.
