Unnatural sex with wife without her consent not offence: Chhattisgarh High Court -OxBig News Network

Sexual intercourse, including unnatural act, by a man with his adult wife, even without her consent, cannot be treated as an offence, the Chhattisgarh High Court held while acquitting a Jagdalpur resident who was convicted of rape and other charges.

Justice Narendra Kumar Vyas made the observations while acquitting the man, who was arrested in 2017 and convicted by a trial court in Bastar district of charges under IPC sections 376 (rape), 377 (unnatural sex) and 304 (culpable homicide not amounting to murder) after the death of his wife.

The judgement in the case was reserved by the court on November 19 last year and delivered on Monday (February 10).

If the age of the wife is not below 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape as such absence of consent of wife for unnatural act loses its importance, the single bench judge noted.

As per the prosecution, the man, a resident of Jagdalpur, the headquarters of Bastar district, was arrested on December 11, 2017, based on the statement of his wife recorded before an executive magistrate before she died the same day at a government hospital.

On December 11, 2017, the woman complained of pain and told her family that her husband allegedly committed unnatural sex with her against her will. Dying declaration of the victim was recorded before the magistrate wherein she has made a statement that due to “forceful sexual intercourse” by her husband she became ill, it said.

On February 11, 2019, the Additional Sessions Judge (Fast Track Court or FTC) at Jagdalpur convicted the man under sections 377, 376 and 304 of the IPC and sentenced him to rigorous imprisonment for 10 years.

The man later approached the HC in Bilaspur challenging the lower court’s judgement.

During hearings, the counsel for the man submitted that there was no legally admissible evidence available on record against the appellant and only on the basis of the victim’s statement, his client has been convicted of multiple offences.

He contended the trial court had not considered the statements of two witnesses who told the court in Jagdalpur that the woman was suffering from piles soon after her first delivery, on account of which she used to bleed and experience pain in the abdomen.

He termed the trial court’s reliance on the dying declaration as “doubtful”.

The counsel appearing for the state government supported the impugned judgment of the trial court and prayed for dismissal of the appeal against the conviction and sentence.