New Delhi: The Delhi High Court recently quashed a trial court order directing prosecution of a man for an offence of unnatural sex with his wife, saying the law does not recognise the concept of marital rape.
Justice Swarana Kanta Sharma quashed the trial court order directing the man to face trial under section 377 (unnatural sex) of the Indian Penal Code (IPC) for the offence of performing oral sexual intercourse with his wife on a complaint lodged by his wife.
“Exception 2 to section 375 of IPC provides that sexual intercourse by a man with his own wife, if she is not under fifteen years of age, is not rape. This creates a legal presumption that a wife‘s consent to sexual intercourse is implied by virtue of marriage. In effect, as on date, the law does not recognise the concept of marital rape,” the High Court said.
The High Court further said there is no basis to assume that a husband would not be protected from prosecution under section 377 of IPC, in view of Exception 2 to section 375 of IPC since the law (amended section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts (including anal or oral intercourse within a marital relationship).
“Therefore, in the context of a marital relationship, section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife. Such an interpretation would be in line with the reasoning and observations of the Hon‘ble Supreme Court in Navtej Singh Johar,” the High Court said.
The Supreme Court in the Navtej Singh Johar case held that section 377 of IPC should not apply to consensual sexual acts between adults, whether heterosexual or homosexual, as doing so would violate their right to equality under Article 14.
The complainant wife in her statement said that she discovered on the very first night that her husband was unable to consummate the marriage, even after taking medication and even during their stay in Manali for their honeymoon, the situation remained unchanged. She however, also alleged that when she had gone for honeymoon to Manali, oral sexual intercourse had taken place between her and her husband.
The High Court said that this sequence of statements gives rise to an inherent contradiction – on the one hand, the complainant alleges lack of sexual capability in the petitioner husband and both of them trying to engage in sexual relations; and on the other hand, she levels allegations suggesting the performance of oral sex, however, what is conspicuously absent is that if there is any allegation that the act complained of was non-consensual or performed under duress.
The High Court further said that the complainant wife and the petitioner husband are legally wedded to each other, and the allegations arise from a matrimonial dispute and importantly, the complainant has not specifically alleged that the act of oral sex was performed against her will or without her consent.
“This court is of the view that charge for offence under section 377 of IPC could not have been framed against the petitioner, who is the husband of the complainant,” the High Court said while quashing the charges.
