Apr 2, Ahmedabad: The Gujarat High Court on Monday observed that non-consensual intercourse by a husband cannot be termed as rape. However, it also stated that subjecting his married partner to have oral or unnatural sex was akin to cruelty.
Hearing a petition filed by a doctor seeking quashing of an FIR of rape registered against him by his wife, Justice J B Pardiwala said the attitude that promotes rape in a marriage can be removed only by making marital rape "illegal or an offence".
The judge today partly allowed quashing of the FIR registered by the police against the doctor at Idar in Sabarkantha district, stating that Sections 376 (punishment for rape) and 377 (unnatural sex) will not be applied against the petitioner.
The high court, however, directed the police to instead book the doctor under Sections 354 (sexual harassment) and 498 (A) (husband and relative subjecting a woman to cruelty) after his wife, also a doctor, told the court that he was subjecting her to mental and physical torture and forcing her to have oral sex.
"No one is even willing to discuss to reform the criminalisation of marital rape...A law that does not give married and unmarried women an equal protection creates conditions that lead to the marital rape," justice Pardiwala said in his order. "Making marital rape illegal or an offence will remove the destructive attitudes that promote the marital rape," he noted.
"The total statutory abolition of the marital rape is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalised," the judge wrote.
The accused doctor moved the HC seeking quashing of the FIR after police had booked him for rape and unnatural sex.
The high court today directed the police to drop charges of rape and unnatural sex against the doctor and asked them to investigate him for cruelty and sexual harassment. The court also directed the investigating officer to examine if a dowry case was made out before adding sections of the Dowry Prohibition Act.