GUJARAT: The high court has ruled it on Monday that if a wife is above 18 years of age, she cannot charge her husband with marital rape. It is not going to categorize as a crime if a man has sex with his wife, without her consent.

Justice J B Pardiwala noted that the offence of rape by a husband is not a punishable offence under IPC Section 375. He lamented a law on the marital rape case and called for a legal provision so that women can protect herself the way she has been enabled to protect her other rights.

The court quoted, in great detail, legal provisions existing in countries across the world on marital rape. Hence, observed that the legislature must criminalize the offence. He said the mere fear of its misuse by "immoral" women should not be a deterrent to passing legislation to protect women battered by marital rape, which is rampant in India.

The HC said a wife can initiate criminal proceedings against her husband for unnatural sex under IPC Section 377. Consent is not a determining criterion in such a case. Any offence which is unnatural and can be described as carnal penetration would constitute an offence under IPC Sec 377.

However, in a marital relationship, "except the sexual abuses of homosexuality, buggery, and bestiality, all other sexual abuses would not fall within the range of Sec 377 of the IPC", the HC added.

Observed that the charge of forced oral sex levelled by the woman, in this case, would not attract the charge of sodomy. The HC added that forcing a wife to have sex would attract the charge of outraging the modesty of a woman under IPC Sec 354.