Sex or any sexual act by a husband is not rape even if it involves force, a High Court judge in Chhattisgarh has said in a ruling described as disgraceful and "atrocious" by many.
"Sexual intercourse or any sexual act by a man with his own wife, the wife not being under 18 years of age, is not rape," says an order from Chhattisgarh High Court Judge NK Chandravanshi, clearing a man accused by his wife of rape and abuse.
The case on which the judge pronounced the order involves a woman who was married in 2017. She alleges in her petition that she was harassed over dowry, beaten by her husband and raped.
"In this case, the complainant is legally wedded wife of applicant therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, charge under Section 376 (rape) framed against the applicant husband is erroneous and illegal," the High Court said.
She had also alleged "unnatural sex", accusing her husband of violating her with objects. While the court disagreed with her on the rape charge, the judge said the husband can be charged under Section 377, which bans sex "against the order of nature".
Marital rape is not a crime in India. Sex by force in marriages is a crime only if the wife is below 18.
Last month, the Kerala High Court had said sex against a woman's will can be termed as marital rape.
"Time has come for the Parliament of India to amend Section 375 of the Indian Penal Code to extinguish the legal shield to marital rape. Women who are married cannot be forced against their will to have a sexual relationship by their husbands," tweeted Congress MP Gaurav Gogoi.
"'Sexual intercourse by husband not rape, even if by force': Chhattisgarh HC Neanderthals in India's judiciary need to wake up. Hope this is appealed in SC asap," Trinamool Congress MP Mahua Moitra wrote on Twitter.
"India shamefully is amongst those few countries that doesn't consider marital rape a crime," said Shiv Sena leader Priyanka Chaturvedi, calling the order atrocious.
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