Since marital rape is not a crime in India, can a husband be punished for having "unnatural sex" with his wife under IPC's Section 377, is the question which is baffling a judge in Rewari, Haryana. The absurd legal situation in India, where marital rape is not a crime, but "unnatural sex" between homosexuals is a crime, goes a long way in creating his dilemma.
The Indian Express reported today that a judge in Rewari has sought advice from the Punjab and Haryana High Court about a case in which a woman is accusing her husband of forcing her to have anal sex, and she has filed a complaint after ten years of marriage.
In the aftermath of the Delhi Gang Rape in December 2012, the definition of rape under IPC's S. 375 was extended to include not just peno-vaginal intercourse, but others forms of sexual violence including forced oral sex and anal sex. But S.375 does not apply to married couples.
S.377, which makes "carnal inter-course against the order of nature" punishable with life imprisonment, is used to target homosexuals in India. While human rights activists have pushed hard for marital rape to be criminalized in India, they have also waged a long battle for S.377 to be struck down.
The judge in Rewari is concerned that S.377 could be misused by a woman who had consensual anal sex with her husband during their marriage, but was trying to falsely implicate him after they had a falling out.
"The offence under Section 377 IPC being punishable with imprisonment for life, there will be no limitation. The husband will have to face trial for none of his faults," the judge said, The Indian Express reported.
The judge writes that if husband is exempt under S.375, making the same act punishable under S.377, is "by no stretch of imagination, be said to be logical."
Under Section 375 of the IPC, a man is said to commit "rape" if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person.
Exception to Section 375: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Section 377: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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