Sexual Intercourse Between Husband And Wife, If Forcible, Cannot Be Considered "Rape": Gauhati High Court

The Gauhati High Court recently set aside a rape conviction and sentence order passed by a Trial Court, on the ground that the accused and victim, a major, were legally married and therefore, the sexual intercourse between the two even if forcible cannot be considered as rape.

The single judge bench of Justice Malasri Nandi observed:

“Exception 2 to Section 375 of IPC states "non-consensual sexual intercourse by a man with his wife, if she is over 15 years, does not amount to rape". Thus, coercive and non-consensual intercourse by a husband with his wife (above 15 years of age) is outside the ambit of rape.”

The facts of the case reveal that an FIR was lodged by the informant (father) on August 02, 2014 alleging that his daughter (wife) went missing. The latter was recovered from the house of the accused-appellant (husband) and a case came to be registered under Sections 342, 366 and 376 of IPC.

The Sessions Court vide judgment and order dated August 10, 2023 convicted the accused under Section 376 of IPC and sentenced him to undergo rigorous imprisonment for seven years.

The appellant however challenged his conviction claiming that he and the alleged victim were in love and she had voluntarily left her house and eloped with him. It was argued that during the said six hours of journey, the victim did not make any hue and cry or protest or informed the matter to her parents or any relatives about the incident. Thereafter, the victim got married with him as per Muslim custom and stayed with him for one and half months as husband and wife, till recovery by the police.

On the other hand, the Additional Public Prosecutor argued that as per evidence of the victim, the accused-appellant forcefully had physical relation with her although she had no intention to do so.

The Court noted that from the statement of the victim, it is apparent that she was a major girl, when she left the house of her parents.

“There was no allegation against the appellant that the appellant applied force when the victim accompanied the accused to Jagiroad. It also appears that their marriage was held and they lived together as husband and wife. However, the victim nowhere stated that she was kept confined in the house of the accused, for which she was unable to communicate with any person. The victim also carried a mobile phone along with her but she did not inform her parents that the accused/ appellant had confined her in his house, got her married and committed rape on her against her will,” the Court noted.

It observed that the victim did not raise any hue and cry at the time of solemnization of her marriage with the appellant and though the victim got the opportunity to inform the matter to her parents or any other family members but she did not do so.

The Court held that the accused and victim being legally married and the victim being the major, the sexual intercourse between the two, if forcible, cannot be considered as rape. The Court further observed that the prosecution has failed to prove the case against the accused/ appellant beyond all reasonable doubt.

Thus, the Court set aside the impugned judgement and order passed by the Trial Court.

Citation: 2024 LiveLaw (Gau) 70

Case Title: Md. Farid Ali v. The State of Assam & Anr.

Case No.: Crl.A./372/2023

Click Here To Read/Download Order