Marital rape exception to the criminal offence of rape in the erstwhile Indian Penal Code (IPC) and current Bharatiya Nyay Sanhita (BNS) has remained a bane in recent times. While the petition that challenged this exception as unconstitutional remains pending in the Supreme Court, and much has been written about why the exception has no place in criminal law, the Chhattisgarh high court delivered a judgment on February 10 in the case of Gorakhnath Sharma vs. State of Chattisgarh. This judgment confirms our deep-seated conviction that indeed, the exception must be eliminated. 

The facts of the case are as follows: The accused – a 40-year-old husband – forcibly inserted his hand in the rectum of his victim wife (age unknown) which led to two perforations on her rectum, resulting in abdominal pain and excessive bleeding. A few days later, she died due to the forcible anal intercourse. She gave a dying declaration before her death, recorded by an Executive Magistrate at the hospital, which the court did not find as reliable evidence. The court ruled that having non-consensual sexual intercourse with a wife above the age of 15 years would not constitute rape under Section 375 of the IPC (now section 63 of the BNS). It further read the marital rape exception into Section 377 of the IPC (a provision which defines and prescribes punishment for ‘unnatural offences.) while no such exception was explicitly stated in Section 377. The court also exonerated the husband from the offence punishable under Section 304 IPC – culpable homicide not amounting to murder. As a cumulative outcome, the court acquitted the husband of all offences for having forcible anal intercourse with his wife to such a degree of violence and brutality that it led to perforation of her anus, and subsequently her death.

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