BHOPAL/JABALPUR: Madhya Pradesh high court (HC) held that forcing unnatural sex on one's wife, coupled with physical assault and cruelty, constitutes an offence under IPC section 498A , and upheld an FIR registered by a woman against her husband. The court, however, said the husband cannot be prosecuted under IPC sections 377 or 376 as ' marital rape ' is not an offence under the law.
Police had registered a case against the accused under IPC sections 377, 323 and 498A which he challenged in HC, contending that unnatural sex with wife is not recognised as an offence in Indian law. Also, 498A is not applicable as no dowry harassment has been alleged in the FIR, he argued.
Justice G S Ahluwalia of Gwalior bench, in his order, said, "Committing unnatural sex with a wife against her wishes and on her resistance, assaulting and treating her with physical cruelty will certainly fall within the definition of cruelty. It is not out of place to mention here that demand of dowry is not sine qua non for cruelty."
The order said, "From a plain reading of IPC section 498A, it is clear that any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb, or health, whether mental or physical, to the woman, would amount to cruelty." It is clear that unnatural sex with wife would not be an offence under section 376 or 377 of IPC, HC said, and quashed this charge in the FIR.
"However, since there are specific allegations that whenever the wife resisted the unnatural conduct of petitioner, she was assaulted and treated with physical cruelty, this court is of the opinion that offence under section 498A IPC is made out. Accordingly, this application is partially allowed. Offence under section 377 is hereby quashed. However, FIR in relation to offence under Section 498A and 323 stands," the court said.
Police had registered a case against the accused under IPC sections 377, 323 and 498A which he challenged in HC, contending that unnatural sex with wife is not recognised as an offence in Indian law. Also, 498A is not applicable as no dowry harassment has been alleged in the FIR, he argued.
Justice G S Ahluwalia of Gwalior bench, in his order, said, "Committing unnatural sex with a wife against her wishes and on her resistance, assaulting and treating her with physical cruelty will certainly fall within the definition of cruelty. It is not out of place to mention here that demand of dowry is not sine qua non for cruelty."
The order said, "From a plain reading of IPC section 498A, it is clear that any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb, or health, whether mental or physical, to the woman, would amount to cruelty." It is clear that unnatural sex with wife would not be an offence under section 376 or 377 of IPC, HC said, and quashed this charge in the FIR.
"However, since there are specific allegations that whenever the wife resisted the unnatural conduct of petitioner, she was assaulted and treated with physical cruelty, this court is of the opinion that offence under section 498A IPC is made out. Accordingly, this application is partially allowed. Offence under section 377 is hereby quashed. However, FIR in relation to offence under Section 498A and 323 stands," the court said.
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