Gujarat HC to decide whether forced oral sex within marriage amounts to rape

In yet another step towards safeguarding women's safety in marriage, the Gujarat high court will soon decide whether forcing a wife to perform oral sex can be considered as sodomy, rape or cruelty in marital life.

The court has also said that it would decide whether a husband can be put on trial under these charges.

Justice J B Pardiwala took cognisance of the issue and has sought a reply from the state government, after a woman, whose identity has not been disclosed, filed an FIR against her husband in Sabarkantha district in northeast of Gujarat for forcing her to engage in oral sex.

Meanwhile, the victim's husband has approached the HC and said that the charges against him should be done away with, as his act does not fall under the category of rape or sodomy because they are a married.

However, Justice Pardiwala has taken strict note of the woman's complaint.

"Marital rape is in existence in India. It is a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalisation of the practice, said Justice Pardiwala.

The court has also sought an explanation from the government whether forced oral sex within marriage falls under the sexual assault category.

"Can a wife initiate prosecution against her husband for unnatural sex punishable under Section 377 of the IPC? If the husband forces his wife to indulge in oral sex, will the same constitute an offence under Section 377 of the IPC? If the husband compels his wife to indulge in oral sex, whether the same would constitute an offence of cruelty within the meaning of Section 498A of the IPC?" the court asked in its order.

"This court would also like to examine the question whether the forcing of a wife by the husband to indulge in oral sex would amount to rape punishable under Section 376 of the IPC," the court added that it wants to examine if the issue falls under definition of marital rape.