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Synopsis

In a recent ruling, the Madhya Pradesh High Court clarified that unnatural sex with one's wife does not amount to an offence under Section 377 of the Indian Penal Code (IPC), regardless of consent. The court further clarified that the same would also not amount to ‘rape’ as defined under Section 375 of IPC.

A bench of Justice Gurpal Singh Ahluwalia, delivered the verdict, stating that “if a wife is residing with her husband during the subsistence of a valid marriage, then any sexual intercourse or sexual act by a man with his own wife not below the age of fifteen years will not be rape.”

The court further noted that “any sexual intercourse or sexual act by the husband with her wife not below the age of fifteen years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance. Marital rape has not been recognized so far.”

The court was addressing an application aimed at quashing an FIR lodged under sections 377 and 506 of the IPC.

The prosecution's case revolves around an FIR lodged by the wife (respondent No.2) on August 24, 2022 at Police Station Kotwali, District Narsinghpur, under Sections 377 and 506 of the IPC against the husband (applicant). Allegations were made by the wife that she married the applicant on May 18,2019 following Hindu customs, but faced physical and mental harassment from her in-laws due to dowry demands. Consequently, she moved to her father's house on February 14, 2020 and filed a report for cruelty, which is currently pending trial.

In the FIR, she claimed that on the night of June 06, 2019 and June 07, 2019, the applicant committed unnatural sex with her, and repeated the act on multiple occasions afterward. She further alleged that he threatened her with divorce if she disclosed the incidents, prompting her to tolerate the acts silently. However, she decided to file the FIR after missing a court appearance due to fear of the applicant's threats.

During the proceedings, Sajidulla Khan, counsel for the applicant, argued that since the individuals involved were married, any unnatural sex between them did not violate Section 377 of the IPC. Additionally, Khan contended that “respondent No.2 did not make these allegations in her first report and the second report with regard to commission of unnatural sex has been levelled in order to make the offence non-cognizable.”

On the other side, Umesh Vaidh, counsel for the respondent, asserted that unnatural sex within marriage was indeed punishable under Section 377, and thus, the police acted correctly in filing charges.

The court considered the central question, “whether a husband during the subsistence of marriage while residing together can be said to be guilty of marital rape or in other words, whether consent of wife residing along with her husband during the subsistence of marriage can claim that the sexual act was committed with her without her consent.”

The court emphasised Section 375 Exception 2 of the IPC, which states that sexual intercourse or sexual acts by a man with his wife, provided she is not under fifteen years of age, do not constitute rape. The only exception to this provision is outlined in Section 376-B of the IPC, where engaging in sexual activity with one's own wife during a period of separate living due to judicial separation or other circumstances would indeed be considered rape.

The court acknowledged that rape now encompasses acts such as insertion of the penis into the mouth, urethra, or anus of a woman. However, the court highlighted that “when rape includes insertion of penis in the mouth, urethra or anus of a woman and if that act is committed with his wife, not below the age of fifteen years then consent of the wife becomes immaterial.”

In light of the circumstances, the court had reached the considered opinion that the allegations outlined in the FIR did not constitute an offence under Section 377 of the IPC. This conclusion was further reinforced by a judgment from a Co-ordinate Bench of the same court in the case of Umang Singhar Vs. State of Madhya Pradesh, Through Station House Officer and Another reported in 2023 SCC OnLine MP 3221.

Additionally, the court addressed the argument raised by the applicant's counsel regarding the timing of the allegations of unnatural sex, suggesting that they were an afterthought due to their absence in the initial report. However, the court deemed this argument unnecessary in light of its determination that unnatural sex between a husband and his legally wedded wife, while residing together, did not constitute an offence under Section 377 of the IPC. Therefore, further deliberations on the basis of the allegations being frivolous were deemed unnecessary.

The court further stated that “even if the entire allegations made by respondent No.2 against the applicant are considered on their face value, still no offence under Section 377 of IPC would be made out.”

Consequently, the court had quashed the FIR against the husband.

 

Cause Title: Manish Sahu v State of Madhya Pradesh [MISCELLANEOUS CRIMINAL CASE No. 8388 of 2023]