New Delhi: The Chhattisgarh high court has stated that non-consensual anal sex or any other non-consensual sexual act committed by a husband on his wife, who is above 15 years old, is not considered an offence under the Indian Penal Code (IPC). This decision was made in the case of Gorakhnth Sharma versus State of Chhattisgarh.
The court relied on Exception 2 to Section 375 of the IPC, which excludes sexual intercourse or sexual acts between a husband and wife from being considered rape, provided the wife is not below 15 years old. The court noted that the definition of rape under Section 375 includes penetration of the penis into any body part, including the vagina, urethra, or anus, but this does not apply to husbands and wives.
In this specific case, the accused, Gorakhnth Sharma, was convicted of rape, unnatural offense, and causing death by negligence after allegedly inserting his hand into his wife’s anus, leading to her death. However, the high court acquitted Sharma of all offences, citing the exception under Section 375. Further, the court held that “if any unnatural sex as defined under Section 377 is committed by the husband with his wife, then it can also not be treated to be an offence,” Bar and Bench reported.
“It is quite vivid that the definition of rape as provided under Section 375 includes penetration of penis in the parts of the body i.e. vagina, urethra or anus of a woman for which consent is not required then unnatural sex cannot be made as unnatural offence between husband and wife, as such apparently, there is repugnancy in these two situations in the light of definition of Section 375 and unnatural offence of Section 377,” the high court said, as per the Bar and Bench report.
The court also examined the dying declaration of the victim, which was recorded before her death. However, the court found that the declaration was not corroborated by any other evidence and therefore could not be relied upon for conviction.
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Moreover, the court held that the conviction under Section 304 (causing death by negligence) was perverse and patently illegal, as the trial court had not recorded any findings on how the offence was attracted in the present case.
