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Unnatural sex between a man and his adult wife does not merit punishment, the Chhattisgarh High Court said in a recent judgment. The case involves a man whose wife died in hospital after unnatural sex. The doctor said she has peritonitis and rectal perforation.
Marital rape is not punishable by law in India. The High Court judgment now leaves unnatural sex out of the ambit of punishment as well.
Accused of unnatural sex and culpable homicide not amounting to murder, he was convicted by a trial court, but got relief from the High Court.
In its judgment, the court said if the wife is more than 15 years old, "any sexual intercourse" or sexual act by the husband cannot be termed as rape under any circumstance and as such, absence of wife's consent for unnatural act loses significance.
So offences under Section 376 and 377 of IPC against the appellant cannot be made.
"The offence between husband and wife cannot be made out under Section 375 IPC as per the repeal made by way of amendment and in view of repugnancy between both the sections," the judgment read.
The Supreme Court was hearing a clutch of petitions seeking criminalisation of marital rape but the hearing got suspended as then Chief Justice of India DY Chandrachud who headed the bench was about to retire.
A new bench is expected to hear the matter.
The Centre maintains that protection of the institution of marriage is essential and there is no need to criminalise marital rape. So it is not within the court's purview to take a decision on the matter.
During the hearing, the government also maintained that parliament has provided several measures to protect the consent of a married woman within marriage.