Chhattisgarh High Court Extends Marital Rape Immunity to Section 377, Sparking Legal Debate

(Source – Indian Express, Section – Explained – Page No. – 11)

Topic: GS2 – Polity

Context

The Chhattisgarh High Court ruled that marital rape immunity under Section 375 IPC also applies to Section 377, effectively decriminalizing non-consensual unnatural sex within marriage.

Analysis of the news:

Extension of Marital Rape Immunity to Section 377

• The Chhattisgarh High Court ruled that the marital rape exception under Section 375 of the IPC also extends to Section 377, which criminalized unnatural sex.

What is Marital Rape?

Marital rape is a type of intimate partner violence that involves forced sex or sexual assault between spouses. It is not a crime in India. However, If a couple is married, but living separately, then the husband is guilty of rape if his wife does not consent to sexual intercourse.

• While Section 375 explicitly exempts husbands from rape charges for non-consensual intercourse with their wives, Section 377 did not include such an exception.

• The HC ruled that both provisions must be read together, effectively shielding husbands from prosecution under Section 377 for non-consensual unnatural sex with their wives.

Case Background and HC’s Justification

• The case involved a husband convicted under Sections 375, 377, and 304 IPC after his wife died due to forced sexual relations.

• While the trial court held him guilty, the HC overturned the ruling, citing that Section 375’s marital rape exception implied that forced intercourse, even unnatural, could not be criminalized under Section 377.

• The court also referenced the Supreme Court’s 2018 judgment that decriminalized consensual homosexuality but retained Section 377 for non-consensual unnatural offences.

Impact of Section 377’s Omission from BNS

• The Bharatiya Nyaya Sanhita (BNS) has entirely removed Section 377, eliminating a key legal recourse for married women facing non-consensual unnatural sex.

• Legal experts argue this also weakens protections for men and LGBTQIA+ individuals who could be victims of sexual offences.

• The omission leaves a legal void, as sexual offences in the BNS primarily focus on crimes against women and children, failing to address non-consensual carnal intercourse with men or transgender individuals.

Legal Challenges and Future Implications

• Advocate Gantavya Gulati filed a PIL in the Delhi HC in 2024, seeking Section 377’s revival.

• The Delhi HC directed the Centre to consider the plea, while the SC dismissed a similar petition, stating that defining crimes falls under Parliament’s jurisdiction.

• The ruling intensifies debates over marital rape immunity, gender-neutral sexual offence laws, and the need for comprehensive legal protection for all individuals.

Conclusion:

• The Chhattisgarh HC ruling limits legal recourse for married women against non-consensual unnatural sex and raises concerns about the absence of Section 377 in the BNS, leaving men and LGBTQIA+ individuals without adequate protection against sexual offences.

What can be Done to Curb Marital Rape?

Jaya Jaitley Committee Recommendations: Raise the minimum marriage age for women from 18 to 21 to promote gender equality, improve maternal health, and reduce the risk of non-consensual sex (marital rape). Legislative Reforms: Amend the BNS to remove the marital rape immunity and recognize spousal consent as a legal necessity. Alternative Legal Frameworks: Expand the Domestic Violence Act, 2005 to explicitly include marital sexual violence, offering stronger civil remedies like restraining orders and compensation. Global Best Practices: India can study UK, Canada, and Australia’s laws to develop a culturally adaptive marital rape law, aligning with global human rights while considering socio-cultural realities.

Practice Question: Critically analyze the implications of the Chhattisgarh High Court’s ruling extending marital rape immunity to Section 377 of the IPC. Discuss the legal and social consequences of the omission of Section 377 from the Bharatiya Nyaya Sanhita (BNS). (150 Words /10 marks)