Husband Cant Be Prosecuted For Rape Under Existing Indian Law

Husband Cant be Prosecuted for Rape Under Existing Indian Law :

Moot point - Forcible sexual intercourse between husband and wife after solemnization of marriage, even if it is against the will and consent of the wife, does not amount to rape.-Dwarka Session Court ,Delhi 


Text of Judgement :

State v. Vikash, SC No.1/14, decided on 7 May, 2014  

The  husband and wife, the sexual intercourse between the two does not come within the ambit of offence of rape as defined in Section 375 of IPC,Additional Sessions Judge, Dwarka: Acquitting an accused from charges under Sections 366/376/377/328 of Penal Code, 1860, the Learned Judge held that forcible sexual intercourse between husband and wife after solemnization of marriage, even if it is against the will and consent of the wife, does not amount to rape. It was said that in the instant case the prosecutrix has herself deposed that the accused engaged in sexual intercourse with her after the marriage had been solemnized and registered in Ghaziabad court. Therefore, the parties being husband and wife, the sexual intercourse between the two does not come within the ambit of offence of rape as defined in Section 375 of IPC, even if the same was against the will and consent of the prosecutrix.

In the instant case, the prosecuterix contended the accused and his father had taken the prosecutrix to the Ghaziabad Court deceitfully after mixing some intoxicants in her cold drink and there she was made to sign some marriage related documents. Later on the accused committed rape upon her at his house and threatened her not to disclose the same to anyone. The Learned Judge said that the prosecuterix testimony was inconsistent and suffered from improvements as she had failed to state in the FIR as to the effect that the intoxicant substance had on her. She did not say if she was conscious or in an intoxicated state while signing the marriage related documents. Moreover, in another petition under Section 9 Hindu Marriage Act, filed by her husband in the Ghaziabad Court, she has nowhere stated that the marriage was registered under the influence of any intoxicating substance. Her testimony clearly suggests that she was fully aware and conscious of the events taking place around her.. Acquitting the accused, the Learned Judge held that the prosecuterix statement in her examination in chief clearly suggests that she had willingly and in full senses married the accused and the same was registered in the office of Registrar of Marriages, Ghaziabad, on 04.3.2013. The parties engaged in physical relations with each other after marriage and the prosecutrix was more than 21 years old at that time. 

Thus, the prosecuterix and the accused being legally wedded husband and wife, and prosecuterix being major, even if there is forcible sexual intercourse between the two, culpability could not be fastened to the accused.