The Chhattisgarh High Court on Monday acquitted a man convicted of rape and unnatural sex, holding that a husband cannot be charged with these offences as “consent is not required” between a husband and wife due to the legal immunity accorded to marital rape. The man’s wife died in 2017, allegedly because of forced, unnatural sex.

If the wife is above the age of 15, any sexual intercourse or sexual act by the husband with her “cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance”, the court said.

Therefore, the offence under Indian Penal Code sections 376 (punishment for rape) and 377 had not been made out, the court said while acquitting the man of all charges.

Exception 2 to Section 375 of the Indian Penal Code, which defines the offence of rape, states that forcible sexual intercourse by a man with his wife is not rape unless the wife is below the age of 15. The provision now comes under Section 63 of the Bharatiya Nyaya Sanhita, which replaced the Indian Penal Code in July.

The judgement by a bench of Justice Narendra Kumar Vyas came on an appeal by a 40-year-old man from Bastar who had challenged his conviction.

The doctor who conducted a post-mortem examination of the woman found that “two perforations on rectum were present” and held the cause of death was peritonitis, or inflammation of the tissue that lines the abdomen and rectal perforation.

A trial court had convicted the man for rape, unnatural offence and causing the death of his wife. The conviction was based on the dying declaration of the woman, who said that she became ill because of the forced sexual act.

The trial court sentenced him to 10 years of rigorous imprisonment. The man challenged this judgement in the High Court.

Vyas in his judgement held that the appellant “is a ‘husband’ and victim is a ‘woman’ and here she is a ‘wife’ and parts of the body which are used for carnal intercourse are also common, therefore, the offence between husband and wife cannot be made out under Section 375”.

In 2013, the definition of rape was widened to include “all sorts of unnatural acts”. However, the High Court said that in view of Exception 2 to the law that defines rape, the consent of the wife “loses its importance”.

It also pointed out that in September 2018, the Supreme Court, while decriminalising homosexuality, had read down Section 377 of the Indian Penal Code and declared all forms of consensual “carnal intercourse” between adults to be legal.

The High Court also criticised the trial court for convicting the man on charges of culpable homicide not amounting to murder under Section 304 of the Indian Penal Code, Live Law reported.

“[The] trial Court has not recorded any finding how the offence under Section 304 of the IPC is attracted to the present facts of the case and proved by the prosecution, still it has convicted the appellant under Section 304 IPC which is nothing but perversity and patent illegality,” the High Court said.

The High Court also expressed doubt about the “correctness of the dying declaration”.

In 2024, the Madhya Pradesh High Court had quashed a case a woman had filed accusing her husband of having unnatural intercourse with her.

Also read: Explainer: Why is marital rape not a crime in India – and can the courts make it one?