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Written by: Prashant Jaiswal (Intern)

Edited by: Anubhav Yadav (Content Head & Developer)

Introduction

On Friday, a Session Court at Mumbai held that a husband having forcible intercourse with a wife has not committed an illegal thing as he was her husband. Court further stated that it was unfortunate that the appellant suffered paralysis due to forced sex but the husband and his whole family shouldn’t be responsible for the same. Additional Session Judge Sanjashree Gharat has granted Anticipatory bail to the accused and his family. The accused is booked under Section 498-A (dowry), 323(voluntary causing hurt), 504(intentional insult) and 506(II) (threat be to cause death or grievous hurt, etc.)

Facts of the Case

Women alleged that just after the conclusion of marriage in 2020, the accused is trying to enforce restrictions on her, taunt her and abuse her. The accused family also demanded dowry she further added. Women alleged that her husband had forceful sex against her wish just after one month of marriage. She said that he again forced himself on her, when they went to Mahabaleshwar in January 2021, due to which she faced problems and fell ill. While consulting with the doctor she was informed about the paralysis below the waist. After that, she filed a complaint against the husband and the entire family. After that, all the accused moved to the session court for grant of anticipatory bail and claimed that no demand was made for dowry and all the allegations are false.

Observation of the Court

In reference to the claim of forceful sex with the wife, Court observed that “there was no illegal thing done by having sexual intercourse with the wife against her wish since the man was her husband”. The court stated that it was unfortunate that women suffered paralysis but man is not responsible for that. The Court on the allegation of dowry demand held that no particular averment was made by the complainant which shows how much money was demanded by the accused. Considering all the above observations Court granted anticipatory bail to the accused and his entire family.

Earlier Decision of Court

Recently Kerala High Court observed that marital rape is a valid ground to claim divorce even if penal law didn’t acknowledge it. The bench opined that treating the women’s body as owing to the husband and performing a sexual act forcefully against the wife’s will is considered marital rape. The bench added that the right to respect the individual physical and mental integrity includes bodily integrity, if someone breaches or disrespects the bodily integrity it is a violation of individual autonomy. The bench said that just because Indian Penal Law (IPC) didn’t recognize it that doesn’t prevent the Court from recognizing marital rape as a type of cruelty to grant the divorce.

Mumbai court order also didn’t reflect the Apex Court opinion which had held that both men and women are equal in marriage and the women hold the right to privacy as well. Supreme Court while delivering a judgment stated that women are also entitled to privacy and no one has the right to invade her privacy. She is entitled to save her privacy if someone attempted to violate it against her wish. Court added women’s are equally eligible for the protection of the law.

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