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Synopsis

The Uttarakhand High Court has ruled that a husband cannot be held liable for the offence of rape for engaging in unnatural sex with his wife, even if the act was done without the wife’s consent.

The decision, delivered by Justice Ravindra Maithani, clarifies that if a sexual act between a husband and wife does not constitute a crime under Section 375 of the Indian Penal Code (IPC), then the husband cannot be found guilty under Section 377 IPC for engaging in 'unnatural sex' with his wife.

The court emphasised that Exception 2 to Section 375 IPC implies consent between a married couple, meaning sexual acts within marriage do not amount to rape. “After 2013, when Section 375 was amended so as to include anal and certain other kinds of sexual intercourse between a man and a woman, which would not be criminalised as rape if it was between consenting adults, it is clear that if Section 377 continues to penalise such sexual intercourse, an anomalous position would result. A man indulging in such sexual intercourse would not be liable to be prosecuted for rape but would be liable to be prosecuted under Section 377,” the court noted.

“In view of amended definition of Section 375 IPC, offence under Section 377 IPC between husband and wife has no place and, as such it is not made out,” the court further said.

The Court's decision came in response to an appeal by a man against a trial court order summoning him in a case filed by his wife. The wife alleged that her husband repeatedly engaged in anal intercourse against her will, causing severe injuries and bleeding that required medical treatment at multiple hospitals. Despite her injuries, the wife claimed that her husband persisted with physical assaults and coercive sexual acts.

Additionally, it was alleged that the husband subjected their son to sexual harassment by showing the child explicit content. The husband's counsel argued that if two consenting adults engage in such acts privately, no offence is made out, and that in the case of a married couple, consent to sex is informed and not required on each occasion.

Conversely, the wife's counsel contended that informed consent for unnatural sex cannot be assumed at the time of marriage and that no wife would consent to such acts. It was further argued that Section 377 IPC independently punishes the act of unnatural sex without exceptions for husbands, and under Section 13(2)(ii) of the Hindu Marriage Act, 1955, sodomy is a ground for divorce.

The Court sided with the husband's argument, stating that a man and a woman indulging in anal sex with their free consent in private is not an offence under Section 377 IPC. In the context of a married couple, both of whom are adults, the consent is informed and explicit, and thus no further consent is required, making no offence under Section 377 IPC. The Court also referenced the Supreme Court's judgment in Navtej Singh Johar v. Union of India, which held that sexual acts between consenting adults would not be considered 'unnatural offences' under Section 377 IPC.

"The act alleged also falls within Section 375 IPC and by operation of Exception 2 to it, a husband cannot be held guilty under Section 375 IPC for such an act. In such a situation, the provisions of Section 377 IPC cannot be invoked against the husband," the court ruled.

The court quashed the summons against the husband under Section 377, the Court upheld the summons for offences under Sections 11 (enticing a child for pornographic purposes) and 12 (sexual harassment) of the Protection of Children from Sexual Offences (POCSO) Act for allegedly sexually harassing his son.

 

Cause Title: Dr. Kirti Bhushan Mishra Vs. State of Uttarakhand and another [Criminal Misc. Application No. 2697 of 2019]