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Relationship without wife’s consent is rape or not? Know the important decisions of the courts regarding husband, wife and sex

New Delhi : Sex is an integral part of married life. But sometimes it happens when the partner is not in the mood. There is no desire. If either of the partners is not in the mood then he should not be forced to have sex. But what is there in the law regarding this? Does having sex with a partner against his will come under the ambit of rape? How many times have the courts given important decisions regarding ‘husband, wife and sex’? let’s watch.

Husband kills wife for refusing to have sex twice in the night!
Often some men force the wife to have sex, whether she wants it or not. It is wrong to consider the wife as a fiefdom and have sex against her will or desire, but even today this happens in many homes. In UP, a husband strangled his wife to death for refusing to have sex twice in the night. The incident happened this week. In Amroha, Mohammad Anwar, 34, killed his 30-year-old wife allegedly because she refused to have sex twice in the night. He told the police that on Monday night he woke up his wife and had sex with her. After some time he again got the urge of sex but the wife refused. Enraged by this, Anwar strangled her to death with a rope. Wrapped the dead body in polythene, he threw it 50 kilometers away from the house and lodged a complaint with the police that his wife was missing.

What does IPC say on rape?
In section 375 of the Indian Penal Code, 7 circumstances have been mentioned which have been kept under the ambit of rape.
1- Having sex against will
2-Sex without consent
3- If a woman’s consent is taken for sex by threatening to hurt or kill a person dear to her, then it is also rape.
4- The consent of the woman should be given but she has given consent thinking that that person is her husband or she will be married to him. But the man knows that he is not the husband of that woman.
5- If the woman has given consent in the state of intoxication or her mental condition is not good
6- If sex is made with a woman below 18 years of age with her consent or without her consent, then it will be rape. This is very important. If sexual relations are made with a minor girl even with her consent, then she will come under the ambit of rape.
7-If the woman is unable to give her consent, yet having sex with her assuming her consent, then it comes under the category of rape.

Is sex with wife against her will rape?
According to Section 375 of the IPC, having sex with a woman against her will, without her consent, is rape. In such a situation, the question arises that if the husband has sex with the wife without her consent or her will, will that also come under the category of rape? The answer is no. In section 375 of the IPC itself, it has been clarified that if a husband has sex with his wife who is at least 15 years of age, then it will not be considered as rape. Forced sex with wife is considered rape in many countries of the world. This is called ‘marital rape’. In India too, the demand to declare marital rape as a crime is gaining momentum. The Supreme Court has also said in a matter related to abortion that sex against the will of the wife is rape.

Sex rape without wife’s consent or not, High Court’s verdict divided
On May 11, 2022, the Delhi High Court gave a split verdict regarding marital rape. One of the two-judge benches rejected the exception under Section 375 of the IPC, according to which sexual intercourse with the wife without her consent is also outside the purview of rape. However, the second judge upheld the exception i.e. forced sex on wife is not an offence. Being a split decision, it is not enforceable. Presently this matter is in the Supreme Court.

Sex without wife’s consent is also rape: Supreme Court
In September 2022, the Supreme Court recognized the concept of ‘marital rape’ for the first time. The case was related to the abortion of a woman. A single woman sought permission to terminate her 20 to 24 week old unwanted pregnancy. In fact, under the Medical Termination of Pregnancy Act (MTP Act), married women have the right to abortion but unmarried women do not. In this case, a bench headed by Justice DY Chandrachud said that there should be no discrimination in safe abortion on the basis of whether the woman is married or unmarried. The court said that even if a married woman becomes pregnant without her consent, it should be considered as rape under the Medical Termination of Pregnancy Act and on this basis she would be entitled to abortion.

Refusal of sex by husband or wife is cruelty: Supreme Court
In September 2014, the Supreme Court gave an important verdict regarding sex in marital relations. The court said that if the husband or wife allows the partner to have sex for a long time without any valid reason, then it is mental cruelty. The apex court has thus approved the divorce of a man from his wife, endorsing the decision of the Madras High Court. In fact, in April 2015, a woman from Tamil Nadu was married to a young man from there. The young man used to work in London. After marriage, the woman went to London with her husband. After 8 months both of them came to Chennai on leave. When it was time to go back to London, the woman refused to go. However, the husband even got her ticket removed. In 2008, the husband filed a divorce petition in the family court that his wife was not allowing him to have sex with her. Even when she went to London with him after marriage, he did not allow her to have sex with him during the 8 months there.

Sex rape on the pretext of marriage: Supreme Court
In April 2019, the Supreme Court said in a judgment that having sex with a woman by promising to marry her comes under the ambit of rape. Not only this, even the consent given by the woman for the relationship in such a case is of no use as this consent has been obtained fraudulently.

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