‘No illegality in husband having intercourse with his wife against her wish’

MUMBAI: There is nothing illegal about husband having sexual intercourse with his wife against her wish, the sessions court said on Friday, while granting anticipatory bail to a Wadala resident booked on a complaint of illtreatment by his wife.

The woman in her complaint said she got married to the Wadala resident last November and her husband and in-laws started imposing restrictions on her immediately after the marriage. She alleged that they demanded money and mistreated her for failing to meet the demand.

The woman further alleged that a month after the marriage, her husband had intercourse with her against her wish. She said he again forced himself upon her when they went to Mahabaleshwar in January and thereafter, she fell ill. She added that on returning from Mahabaleshwar when she went to a doctor, she was informed that she had suffered paralysis below the waist.

After her complaint, Wadala TT police booked the man, his brother and brother’s wife, his sister and her husband under sections 498A (husband or relative of husband of a woman subjecting her to cruelty), 323 (voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of the peace) and 506 (2) (criminal intimidation) of the Indian Penal Code.

All the accused had then moved the sessions court for anticipatory bail, claiming that there was no demand for money nor was any harassment meted out to the complainant and that they were falsely implicated.

The accused also pointed out that his sister stayed at Ratnagiri and had visited his house for two days when his wife was around.

Though the police opposed the bail pleas, additional sessions judge Sanjashree Gharat granted relief to the five accused on furnishing a personal bond of ₹15,000 each with one or two sureties of the same amount.

With regards to the woman’s allegation of forcible intercourse, the court said that there was nothing illegal in a husband having intercourse with his wife against her wish. “Applicant no 1 (husband) cannot be said to have committed any illegal thing,” the court said about the allegation. “It is very unfortunate that the young girl suffered from paralysis. However, the applicants cannot be held responsible for the same,” the court added.

The judge, on the allegation of dowry demand, said that the woman had claimed that she was mistreated at her matrimonial home for non-payment of money demanded by her husband and in-laws, but nowhere specified as to how much money was demanded.

When asked whether she agreed with the order passed by the sessions judge, advocate Kalpana Hiray, the additional public prosecutor who represented the police, said she would have to refer to the order before commenting on it.

However, the sessions court order does not reflect the opinion of the Supreme Court (SC) which had observed that in a marriage a man and woman are equals and the woman has a right to privacy as well. In a judgment on the issue, SC observed, “Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law.”

Justice JB Pardiwala of Gujarat high court, while passing judgment in a case, had observed, “A woman is no longer the chattel antiquated practices labelled her to be. A husband who has intercourse with his wife is not using a property, he’s fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He can’t be permitted to violate this dignity by coercing her to engage in a sexual act without her free consent.”

While speaking on the issue of marital rape, advocate Aniket Nikam, said, “Today, section 375 (rape) of the IPC needs amendment to the exception which is already suggested by the justice JS Verma committee set up for providing sharper teeth to antirape laws. Every woman is a separate individual and the age-old reluctance (exception) can’t be applied every time. But this amendment needs to come up with safeguards to ensure that the new law won’t be misused.”

Nikam said, “We’ve borrowed this [law] from the British Common law when women were considered as chattels who lacked decision-making powers. But today they need to be treated as an equal, and individual rights need to be considered. However, we also need to keep in mind that marriage as an institution should not suffer.”