In departure from many past court orders, Gujarat HC flags bodily autonomy in a marital rape case

The high court has upheld a trial court's denial of anticipatory bail to a man, whose wife has accused him and her in-laws of rape, unnatural sex, and physical assault, calling her accusations 'serious'.

Illustration: Prajna Ghosh | ThePrint

New Delhi: Intimacy is normal between married couples, but must be “consensual” and “mutually respectful”, the Gujarat High Court has ruled in a matter where a woman had accused her husband and in-laws of rape, unnatural sex, and physical assault.

Undoubtedly, marriage has been seen as an automatic grant of sexual consent for decades. But modern and legal frameworks increasingly recognise an individual’s bodily freedom, even within a marital relationship, the court observed.

Under current Indian laws, non-consensual sexual acts by a husband with his adult wife do not amount to an offence under Section 375 or Section 377 of the Indian Penal Code.

Responding to the complainant woman’s allegations of unnatural sex against the husband, the court noted that the husband was not only an alcoholic but also frequently subjected his wife to unnatural sex against her will and wish.

“Unnatural sex by any spouse against the will and wish of the other partner not only causes immense physical pain, but it also gives mental and emotional trauma to the unconsented spouse,” the court said. No woman in “our civilised and cultured society”, it added, would confront such sensitive issues in public until the level of such harassment and abuse went beyond her tolerance.

Making these observations, a single-judge bench of Justice Divyesh A. Joshi rejected the application for anticipatory bail filed by the husband, who was apprehended after the woman filed a criminal complaint against him and his family members. The accused subjected her to dowry demands, assaulted her physically and mentally, and beat and strangulated her, the woman’s complaint said.

The husband initially approached the trial court, seeking anticipatory bail, but the trial court rejected his request.

Now, the Gujarat High Court has upheld the trial court’s order that denied anticipatory bail to the man, noting that the husband’s presence may be required for custodial interrogation and that his bail at this stage could hinder the investigation.

Significantly, the court in its 20-page ruling also noted that this was the husband’s second marriage and that his first wife also made similar allegations against him in their divorce case.

“The record indisputably further reveals that the applicant has married a second time to the complainant, and the first wife of the applicant had also made similar kind of allegations against the applicant, which shows that the applicant is a repeat offender and is habitual in doing such kind of acts,” the court held.

In her plea before the Gujarat HC, the wife said that when she tried to register an FIR on 29 June 2025, the authorities first refused to take her complaint, which was registered only after the intervention of higher authorities.

The case

In April last year, the petitioner’s husband and in-laws threw her out of the matrimonial home, compelling her to approach the court.

The two had met on a WhatsApp group and grown close. The accused man then married the woman, assuring her that if she married him, he would take care of her. But this was a false assurance, the wife submitted in her plea. The two had got married in a simple ceremony without any pomp or show.

According to the complainant, soon after the marriage, her husband started demanding dowry. Her father-in-law also physically abused her and made unreasonable demands, she told the court. She was mentally harassed till being finally thrown out of the matrimonial home.

The husband’s lawyers argued that his custodial interrogation was not necessary as he was already cooperating with the authorities and would not flee.

His lawyers also argued that the incidents the wife alleged took place between 2022 and 2024, but there was a 1.5-year delay in approaching the police from her side and that also without any explanation. Additionally, they argued that the allegations were fabricated, as the husband was a multimillionaire who lived in a luxurious home and ran a corporate guest house in Gurgaon.

As for the rape and assault allegations against her father-in-law, it did not concern the husband, his lawyer said, adding that the in-laws were old and infirm, struggling with ailments such as cancer and arthritis.

The woman’s lawyer argued that the husband had access to her private photos, which he could leak to influence the wife to take back her complaint.

The lawyer also argued that it was due to the shock and trauma inflicted by the abuse that the woman was hesitant to approach the authorities.

Moreover, in June last year, when she approached the authorities, they initially failed to act without an external intervention. He even shared incriminating WhatsApp messages and death threats targeting the wife, along with instances of verbal abuse.

Court’s response

After hearing all parties, the court observed that it was settled law that certain requirements had to be met for the grant of anticipatory bail.

“Were there any reasonable grounds to believe that the accused committed the offence”, “what is the nature and gravity of the accusations made”, “how severe is the punishment if the accused is convicted”, and “what is the danger of him fleeing, if released on bail”, were some questions the court had to answer before allowing anticipatory bail to an accused.

The husband’s character, behaviour, and standing must also be checked into, the court explained.

Underlining the need for the husband’s custodial interrogation, the court said that though the matter appeared to be matrimonial in nature, the complainant made serious allegations of mental and physical assault against the accused and his parents.

“Very grave and serious allegations of giving burns on the private part of the complainant with the lit cigarettes are made in the body of the FIR against the present applicant,” the court noted.

“Not only that, learned counsel for the complainant placed on record certain WhatsApp chats between the complainant and the applicant, wherein very abusive language was used by the applicant towards the complainant, which clearly shows the mentality of the applicant and his aggressive nature,” it further noted.

Finally, the court upheld the trial court order rejecting the husband’s bail, saying it’s not a simple case of matrimonial dispute, but instead, something beyond the general and usual allegations made in matrimonial matters.

Though in this case, the husband was made accountable for marital rape and performing unnatural sex on his wife, there is no uniformity in rulings meted out by the high court when it comes to this subject.

Varying decisions

In February last year, the Chhattisgarh High Court cleared a 40-year-old man of charges, including rape, forcible anal penetration and culpable homicide, reasoning that sexual acts by a husband on his wife, even without her consent, were not considered an offence in the country.

Saying that it’s “quite vivid” that if the wife is over 15 years of age, “then any sexual intercourse or sexual act by the husband with her cannot be termed as rape”, the bench of Justice Narendra Kumar Vyas said the wife’s lack of consent for unnatural acts “loses its importance” under the circumstances. “…it is quite vivid, that if the age of wife is not below 15, then any sexual intercourse or sexual act by the husband with her cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance, therefore, this court is of the considered opinion that the offence under Section 376 and 377 of the IPC (Indian Penal Code) against the appellant is not made out,” the court said in its 17-page-ruling.

While Section 375 defines and deals with the offence of rape, Exception 2 of this provision exempts sexual intercourse or acts by a man with his own wife, provided that she is over 15 years of age, from the offence’s ambit. Essentially, this exemption protects the man from being charged with raping his wife. In that case, the court, however, relied on this exception, which is also known as the marital rape exception, to give relief to the man accused of forcibly penetrating his wife and causing her death.

(Edited by Madhurita Goswami)