Non-Consensual 'Unnatural Sex' with Wife Punishable Under Section 377 IPC: Allahabad High Court
In a significant judgment, the Allahabad High Court has held that a husband can be prosecuted under Section 377 of the Indian Penal Code (IPC) for engaging in non-consensual unnatural sexual acts with his wife, even if she is above 18 years of age.
Court emphasized that a woman's right to dignity, privacy, and bodily autonomy cannot be curtailed merely by virtue of her marital status.
The bench of Justice Arun Kumar Singh Deshwal observed, "A wife may be above 18 years but as an individual identity she has a choice for sexual orientation that has to be protected, and merely because she is a wife of a man, her fundamental right not to give consent against the unnatural sex cannot be taken away. A woman despite being a wife also has individual right to particular sexual orientation and dignity".
Court passed the order while rejecting a plea by the applicant, Imran Khan alias Ashok Ratna, seeking to quash criminal proceedings initiated against him under various sections of the IPC, including 498A (cruelty), 377 (unnatural offences), and sections of the Dowry Prohibition Act.
A complaint was lodged by Khan’s wife in February 2023, alleging dowry harassment, physical abuse, and forced unnatural sex.
The applicant had argued that Section 377 IPC does not apply in the context of a married couple and cited rulings from the Madhya Pradesh High Court, which had held that such acts, even without consent, did not amount to offences under Section 377 if the victim was the man's wife unless she is below 18 years of age because the same is not punishable as rape under Section 375 IPC.
Disagreeing with this view, the Allahabad High Court observed that a woman, even after marriage, retains her individual rights and autonomy over her body and sexual choices.
The court placed strong reliance on the Supreme Court’s landmark rulings in Navtej Singh Johar v. Union of India (2018), which partially struck down Section 377 IPC for criminalizing consensual same-sex relations, and K.S. Puttaswamy v. Union of India (2017), which affirmed the right to privacy as a fundamental right under Article 21 of the Constitution.
Justice Deshwal further clarified that although the amended Section 375 IPC (definition of rape) exempts husbands from prosecution for certain sexual acts with their wives, this exception does not automatically negate criminal liability under Section 377 when consent is absent.
“Carnal sex other than penile-vaginal intercourse is not a natural orientation of sex for the majority of women,” the court noted, adding that non-consensual acts of this nature violate a woman's bodily integrity.
Rejecting arguments related to the delay in filing the FIR and the complainant’s refusal to undergo medical examination, the court held that continuous harassment justified the delayed complaint, and other evidentiary material supported the charges.
Court concluded that the allegations made by the wife, including cruelty, dowry harassment, and non-consensual unnatural sex, warranted a trial and declined to quash the proceedings. However, it allowed the applicant liberty to seek bail from the trial court.
Case Title: Imran Khan @ Ashok Ratna Vs. State of U.P. and Another