Marital Rape and Murder: Examining Liability in light of recent Chhattisgarh HC Ruling
[6 min read, 780 words]
The recent judgment of Chhattisgarh High Court in the case of Gorakhnth Sharma v. State of Chhattisgarh, has caused a public outcry.
Why? Because the court has acquitted a husband for the charges of 376 (rape), 377 (unnatural sex), and 304 (Culpable homicide (similar to murder, for laymen)) of IPC, for causing the death of his wife by putting his hand in the ‘anus’ of his wife.
The public outcry is about the notions like the consent of a wife, marital rape, and dignity of a women in a marriage. But that is not what I am getting into. Neither I will be suggesting what developments are needed in the law in this article, I intend to throw a light on what grounds the accused-husband could have been convicted and justice could have been served to the victim-wife.
My two cents will be on how the current position of the law was sufficient to do justice and convict the accused.
Till now the lex loci (law of the land) in India is that as per exception 2 of s. 375 of IPC (rape), a husband could not be made liable for forceful sexual act on his wife. The consent of wife here is immaterial as per the law. The Court held because s. 375 is not rape by the husband under the said exception, thus he cannot also be held liable for s. 377 of IPC (Unnatural sex).
Often, the Unregistered firm directly files the suit right away. After filing the suit, they register the firm. As we all know, the suit will be barred by s. 69 of the Act. The reason is that subsequent registration of the partnership firm could not cure the defect. As at the time of the suit's institution, the partnership was not registered, and this subsequent change could not relate back and cure the defect. Therefore, the suit will mandatorily be dismissed.
Now, let’s talk about the charge of s. 304 of IPC (Culpable Homicide). The court simply in one paragraph gave its finding on the charge of s. 304. It held that because the trial court (lower court from where an appeal has been made to the High Court, or can say first court to decide the matter) has not recorded any finding as to how the offense under Section 304 of the IPC is attracted to the present facts of the case, therefore the said charge has to be quashed.
In my opinion, the High Court errored because there is a death of a person (actus reus, in legal language). The court failed to consider the following things:
1. That there was a direct causation link between the husband doing that act and the death of her wife.
2. The deceased wife gave a dying declaration before the Magistrate that her husband has done forceful sexual intercourse with her.
3. The postmortem report which opined that the cause of death was due to peritonitis and rectal perforation.
4. The peritonitis and rectal perforation were caused by the act of insertion of the hand by the husband.
Therefore, even if the husband was not been held liable for the rape and unnatural sex. He is bound to be held liable for the charge of culpable homicide.
Now some may claim the defense of consent, that there was consent of the wife for the sexual act or her consent was immaterial. However, irrespective of that, even in the worst case if there was a consent also, then also by reading exception 5 of s. 300 IPC, the person will be held liable for culpable homicide if not murder, if there is a death of a person.
Now, another defense argument could have been that there was no mens rea on the part of the husband to cause the death, which is an essential ingredient for convicting the Culpable homicide. He could claim that his act was only to seek pleasure and not to cause death, therefore the element of mens rea is missing and should be acquitted (release).
Now what (it’s going to be little legal)? So, the words “the intention of causing such bodily injury as is likely to cause death” in the definition of culpable homicide under s. 299, would make him liable. It would be read in two parts (elements): (i) Intention to cause bodily injury (not an intention to cause death); and (ii) such bodily injury is the cause (reason) for death.
Now let’s apply this interpretation to the facts.
His act of injuring the rectum by inserting the hand is evident to show his intention to cause bodily injury. And, the doctor's opinion that such bodily injury was the reason for the cause of death satisfies the above elements.
Therefore, we can conclude that if not raped the husband is bound to be punished for the Culpable Homicide.
In conclusion, the High Court could have deliberated on the charge of s. 304 in more detail, upheld the order of the trial court, and, at least, convicted him of Culpable Homicide. Let’s hope the Supreme Court decides on the matter and does justice to the victim.
Disclaimer: The information provided in this article is for general informational purposes only and is not intended to be legal advice. It should not be relied upon as a substitute for professional advice. It is recommended that you consult with a lawyer.
