Having sexual relation with the wife without her permission is not marital rape, oral s** is cruelty, says Gujarat High Court

The Gujarat High Court Monday said non-consensual sexual intercourse with the wife is not rape. The court observed that the sexual relationship between the husband and wife without her permission cannot be dubbed as rape. The statement also subjected that if the husband has oral or unnatural sex with the wife without her consent will be subjected to cruelty.

Justice JB Pardiwala's observation came after a petition was filed by a lady doctor who approached the court and lodges an FIR of rape and physical harassment against her husband, who too is a medical professional.

According to a report in NDTV, The complainant said that her husband forced her to have sexual intercourse with him against her wishes and that he would also subject her to have oral sex and indulge in unnatural sexual activities, other than torturing her for dowry.

Seeking rejection of the lady doctors' complaint against him, the husband moved the Gujarat High Court.

Stating that physical relationship with his wife against her consent could not be termed as rape, Justice J.B. Pardiwala observed: "The husband cannot be prosecuted for the offence of rape punishable under Section 376 of the IPC at the instance of his wife as the marital rape is not covered under Section 375 of IPC... which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape."

Justice Pardiwala, however, said that a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the IPC.

As per reports, the court observed that though a husband had the right to have sex with his legally wedded wife, she was not his property and it should not be without her consent.

In the proceeding, the Justice Pardiwala refuted to handover the case probe to any investigative agencies like CID or CBI and ordered the continuation of hearing on the complaint of the lady doctor. It also rejected the complaint against the parents of her husband filed by the complainant.

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