Judgment of acquittal passed by
the Chhattisgarh High Court in a case of marital rape where the wife died due
to the sexual brutality of the husband is nothing but a mockery of justice. The
case belongs to the Jagdalpur district of Chhattigarh. The accused husband, a
driver, committed unnatural sex with his wife, and left her in pain, who died
in a hospital. In her dying declaration, recorded before a
magistrate, the victim alleged that her husband had inserted his hand in her
anus, following which she suffered excruciating pain.
The woman was admitted to
the hospital for treatment, from where a report was made to the police station
concerned and the offence under IPC Section 377 (unnatural sex) was registered
against her husband.
The Indian Evidence Act,
1872, under Section 32 deals with the concept of a “dying declaration”.
Usually, a dying declaration is only admitted as evidence in cases where the
cause of a person’s death comes into question. This concept is based on the
Latin legal maxim “nemomoriturus prae-sumitur mentire” which means a man
will not meet his maker (God) with a lie in his mouth.
In Naeem vs the State of
Uttar Pradesh, the Supreme Court ruled that a dying declaration can be the sole
basis of conviction, but courts must find it to be trustworthy, and one that
inspires confidence.
Notably, in this case, the
doctor who had conducted a postmortem of the deceased’s body had said there
were “two perforations on the rectum”, one on the anterior side and another
above the pelvic floor, causing him to conclude that the victim died on 11 December
2017, as a result of the same.
In February 2019, a trial
court at Jagdalpur convicted the husband under
Sections 376 (rape), 377 (unnatural sex), and 304 (culpable homicide not
amounting to murder) of the Indian Penal Code (IPC), and sentenced him to 10
years rigorous imprisonment and a fine of Rs 1,000. However,
the Chhattisgarh High Court later acquitted him, citing the marital rape
exception under Section 375 IPC, which states that sexual intercourse by a man
with his wife, if she is above 15 years of age, is not considered rape. Here
the wife was said to be over 15 years.
It also cited the
five-judge SC bench’s ruling in Navtej Singh Johar vs Union of India (2018) to
say that if an “unnatural offence is done with consent, then the offence of
Section 377 IPC is not made out”.It is ridiculous to say that the wife
consented to her husband to insert his hand in her anus. The law, it
is often said is like an ass but all the same, it is also true that insensitive
justice is no justice. This decision was the height of insensitivity.
Most women,
from a very young age, are sold the idea that safety and prestige come with
marriage. However, ironically, marriage becomes just another apparatus in
patriarchy’s arsenal, to perpetuate violence, as was seen in this case. Rape isn’t merely about a violation of a person’s consent but also
involves an assertion of power that men enjoy in a patriarchal society.
The central argument against criminalising marital
rape is the fear of its misuse, a reiteration of each time when laws have been
proposed for the protection of the marginalised. This decision of the
Chhattisgarh High Court is a clear miscarriage of justice and very shocking.
Sex with a wife without her consent may fall within exception 2 in section 375
but extreme brutality resulting in her death is frightening, to say the least.
