Bhopal: In a significant order, the Madhya Pradesh High Court partially allowed a husband’s petition seeking to quash an FIR for sexual abuse and dowry harassment.
A bench of Justice Milind Ramesh Padke said that consent in a marriage is “legally immaterial,” Live Law reported.
The high court was hearing a petition seeking the quashing of an FIR filed for sections of cruelty, unnatural offences, voluntarily causing hurt, obscene acts and criminal intimidation.
Justice Padke observed that given the exceptions provided under rape provisions, any sexual intercourse or sexual act committed by a husband upon his adult wife does not constitute rape.
Even if allegations of forced “unnatural acts” made by the complainant are accepted, they pertain to acts within marital relationship and hence does not constitute crime according to the high court.
In light of Exception 2 to Section 375 IPC, “sexual intercourse or sexual acts by a husband with his wife (not being a minor) do not constitute rape,” said Justice Padke.
The prosecution said in court that after the marriage, the wife’s family gave Rs 4 lakh in cash, ornaments and appliances as dowry. The husband allegedly demanded Rs 6 lakh, and the wife claimed her father-in-law subjected her to inappropriate behaviour.
The court first held that the power to quash an FIR must be used sparingly when no offence is disclosed. In this particular case, the FIR reveals only “general and omnibus allegations without attributing any specific overt act.”
The court noted that the wife did not mention a specific act, and quashed the FIR.
On allegations against the husband, Justice Padke observed that sexual intercourse or sexual acts by a husband on the wife does not constitute as rape.
The scope of rape has been expanded to cover acts like oral and anal penetration, but the court clarified that such acts, when occurring within a subsisting marriage, do not attract Section 377 IPC.
The court. however, did not quash other proceedings against the husband.
Last year, the high court ruled in a similar case that forcing unnatural sex on one’s wife, along with physical assault and cruelty, amounts to an offence under Section 498A of the IPC.
The court went on to clarify that the husband cannot be prosecuted under Section 377 or 376, since ‘marital rape’ is not a punishable offence.
