A man jailed for raping his wife after she accused him in a dying statement has been freed by a judge, on the grounds husbands in India cannot be prosecuted for marital rape.
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The 40 year-old man was convicted of charges of rape, “unnatural” sex, and culpable homicide not amounting to murder for his wife’s death, and jailed for 10 years in 2019.
He had been arrested two years earlier after his wife made a dying declaration saying that she was forced to have sex with him and suffered injuries as a result. She was admitted to hospital and died the same day, according to the legal media outlet Live Law.
However, the Chhattisgarh High Court has now overturned that conviction citing the country’s laws on forced sexual acts within marriage, and ordered his immediate release from prison.
The single judge bench of justice Narendra Kumar Vyas said that “if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance”. This appears to be at odds with a landmark Supreme Court ruling in October 2017 that raised the age of marital rape from 15 to 18.
The defence also argued before the high court that there was no legally admissible evidence against the accused and the conviction was based only on the woman’s dying declaration.
The counsel further disputed her cause of death, contending that the original trial “overlooked statements from two witnesses who testified the woman had suffered from piles since her first childbirth which caused bleeding and abdominal pain”, the Times of India reported.
Last year the Indian government opposed calls to classify non-consensual sexual acts within marriage as rape, arguing the move could have an impact on conjugal relationships and ‘disturb the institution of marriage’.
The federal Home Ministry told the Supreme Court that while a husband does not have the right to violate his wife’s consent, labelling such an act “rape” would be “excessively harsh and therefore disproportionate”.
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