Sex between spouses must be consensual; forced unnatural sex traumatic: Gujarat High Court

Physical intimacy is normal between every married couple but the same has to be a consensual and mutually respectful, the Gujarat High Court recently said.

Thus, forced unnatural sex by any spouse against the will of the partner causes immense physical and mental trauma, Justice Divyesh A Joshi said.

Though marriage has long been viewed as an automatic grant of sexual consent, modern legal frameworks increasingly recognize the bodily freedom of an individual even within a marital relationship, the judge added.

“Having unnatural sex by any spouse against the will and wish of other partner not only causes immense physical pain but it also gives mental, and emotional trauma to the unconsented spouse,” the order said.

The bench was dealing with the anticipatory bail plea moved by a husband accused of dowry demand, physical assaults and sexual abuse by his wife. Particularly, it was stated that he used to do “unnatural sex” with the wife against her will and wish. She also accused the father-in-law of sexual abuse. 

The Court was told the accused and the complainant married in 2022 in Delhi and the FIR was lodged in October 2025. It was also submitted that the husband is a business tycoon in Gurugram and a  multi-millionaire. The complainant is a law graduate and a chartered accountant.

The counsel representing the accused said the allegations were a counterblast to the divorce petition filed by him in the family court, in Gurugram in May 2025. In response, the counsel for the wife said there were multiple incidents of beating, strangulation and her head being banged against walls throughout married life.

Considering the record and submissions made by the parties, the Court opined that very serious allegations of mental and physical assault have been made by the complainant against her husband and his parents.

“Very grave and serious allegations of giving burn on the private part of the complainant with the lit cigarretes are made in the body of the FIR against the present applicant. Not only that, learned counsel for the complainant has placed on record certain WhatsApp chats between the complainant and the applicant, wherein very abusive language has been used by the applicant towards the complainant, which clearly shows the mentality of the applicant and his aggressive nature,” the Court noted.

Thus, the Court opined that it  was not a simple case of matrimonial dispute.

“It prima facie seems to be something beyond the general and usual allegations stated to be being made in every matrimonial disputes by the wife,” it added.

On the allegations of “unnatural sex” against wife’s consent, the Court said,

“We do understand that no women in our civilised and cultured society would come forward and confront such sensitive issues in public until the level of such harassment and abuse goes beyond her tolerance. The record indisputably further reveals that the applicant has married second time to the complainant and the first wife of the applicant had also made the 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.”

Concluding that the allegations of physical and sexual assault in the case were of grave nature, the Court said that a prima facie case of custodial interrogation of the accused was made out by the prosecution.

“In view of above discussion and considering the materials produced before this Court, I am of the opinion that there seems to be a prima facie involvement of the present applicant in the commission of the alleged offence,” the bench ruled, while rejecting the pre-arrest bail application.

Senior Advocate Yatin Oza and advocate Sudhir Walia, Aditya Gupta, Harshal Baradia and Neeharika Walia argued for the accused.

Senior Advocate Jal Unwalla and advocate Bomi H Shethna argued for the complainant.

Additional Public Prosecutor Soham Joshi argued for the State.

[Read Order]