Non-consensual sexual intercourse with wife is not rape, the Gujarat High Court ruled on Monday.

Justice JB Pardiwala's ruling came in connection with a petition filed by a doctor who approached the court to get an FIR filed against him by his wife quashed.

The court observed that a husband cannot be prosecuted for the offence of rape at the instance of his wife due to exception II in Section 375 of the IPC.

It should be noted that the exception provides that sexual intercourse by a man with his own wife (when she is above the age of 18 years) is not rape.

The court also observed that the wife can initiate proceedings against the husband for unnatural sex under section 377 of the IPC as consent is not a determining criterion in the case of unnatural offence.

The court also sought investigation under sections for outraging the modesty of the wife (section 354) though that offence was not made out in the original FIR filed with the Idar Police Station in Sabarkantha district.

A lady doctor had filed an FIR with the Idar police, accusing her husband of rape, unnatural sex and dowry harassment, following which the husband moved the court to quash the FIR.

The court, however, refused to quash the dowry complaint against the husband stating that a prima facie case was made out. It also directed the DSP of Himmatnagar to monitor the investigation and to look into the grievance of the victim that the FIR was not written as per what was actually stated by the victim (the wife).

The court apart from quashing the sections of rape in the FIR also quashed the FIR against the parents of the accused doctor.

Letting off the parents, the court observed that as usual in a dispute between the husband and wife, the parents of the husband have also been dragged into the prosecution.

It also rejected the wife's request that the case be investigated by the state CID crime or CBI.

THE CASE

A lady doctor had filed an FIR with the Idar police, accusing her husband of rape, unnatural sex and dowry harassment, following which the husband moved the court to quash the FIR