New Delhi: As the nation still debates if marital rape is a criminal offence, the Gujarat High Court has called upon itself to determine whether a husband can compel a wife to indulge in oral sex and if such an act would amount to rape and cruelty.
Calling it an issue of ‘utmost public importance’, Justice JB Pardiwala chose to examine whether such an act can be criminalized under IPC.
“If the husband compels his wife to indulge in oral sex, whether the same would constitute an offence of cruelty within the meaning of Section 498-A of the IPC. This court would also like to examine the question whether forcing a wife by the husband in oral sex would amount to rape punishable under Section 376 of the IPC,” reads the order.
The court has now asked the government to reply to these key questions. It has also asked, “Can a wife initiate prosecution against her husband for unnatural sex punishable under Section 377 of the IPC? If the husband forces his wife to indulge in oral sex, will the same constitute an offence under Section 377 of the IPC?”
The court has also severely criticized the debate over marital rape and said it has led to women in India bearing a “scar” throughout their lives.
“Marital rape exists in India and it is a disgraceful offence. It has scarred the trust and confidence in the institution of marriage. A large number of women are still bearing the brunt of non-criminalization of marital rape. It is a non-consensual act of violent perversion by a husband against a wife, where she is abused physically and sexually,” noted the HC judge.
The case has its roots in a three-year-old marital dispute, in which the woman left her marital home and filed an FIR against her husband and in-laws in Sabarkantha district of Gujarat.
Advocate Jigar Gadhavi, who was appearing for the husband prayed that “there was no separation between the husband and wife and that they were living together. The wife cannot allege a violation of Section 377, especially with regard to oral sex.”
Justice Pardiwala also laid down the three kinds of marital rape prevalent in India and denounced them.
The Gujarat HC termed the first kind of marital rape as “battering rape”, in which “rape may follow a violent physical episode where the husband wants to makeup and coerces his wife to have sex against her will”.
According to the judge, the second category is “force only rape”, in which “husbands use only that amount of force, as it is necessary to coerce their wives”.
The judge has stated that the third is “obsessive rape,” in which assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. Justice Pardiwala also termed it as “sadistic rape.”
The matter has now been directed to be on top of the board.
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