The Gujarat High Court on Monday quashed a First Information Report filed against a man accused of raping his wife, saying that non-consensual intercourse by a husband cannot be dubbed as rape, IANS reported. The court, however, observed that marital rape should be made a punishable offence under law.

The court made these observations on the complaint of a woman who accused her husband of rape and physical harassment. The complainant said her husband forced her to have sexual intercourse against her wishes and also subjected her to have oral sex with him. She also accused him and his parents of torturing her for dowry. The husband had moved the High Court against her complaint.

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Justice JB Pardiwala said the husband cannot be booked for raping his wife since Section 375 of the Indian Penal Code provides that sexual intercourse by a man with his own wife, who is not under 18 years of age, is not rape, The Indian Express reported.

The judge quashed rape charges against the husband, but directed the police to book the man for sexual harassment and domestic violence, PTI reported. Pardiwala also said that the woman can initiate proceedings against her husband for unnatural sex under Section 377 of the Indian Penal Code. The court also rejected the complaint against the man’s parents.

“A law that doesn’t give married and unmarried women equal protection creates conditions that lead to the marital rape,” Pardiwala noted. “It allows the men and women to believe that wife’s rape is acceptable...No one is even willing to discuss to reform the criminalisation of marital rape. Making marital rape illegal or an offence will remove the destructive attitudes that promote the marital rape.”

The judge said the total statutory abolition of the marital rape was required to teach the society that dehumanised treatment of women will not be tolerated. “Marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalised,” he added.