The Delhi High Court has ruled that in a marital relationship, Section 377 of Indian Penal Code, 1860, 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 (supra),” Justice Swarana Kanta Sharma said.
The Court observed that as on date, the law does not recognise the concept of marital rape.
It noted that 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, the Court said.
“Thus, in the considered opinion of this Court, 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),” the Court said.
Justice Sharma set aside the order framing charges against a husband for the offence under Section 377 of IPC.
The FIR was lodged by the wife alleging that on the very first night, she discovered that her husband was unable to consummate the marriage, even after taking medication.
She further alleged that when she again confronted her in-laws, she was allegedly physically assaulted by them. She alleged that the marriage was a conspiracy by her husband and father-in-law to establish illicit relations and extort money from her family.
The Court observed that Section 375 of IPC, prior to its amendment in 2013, was narrowly worded and dealt exclusively with the act of forced sexual intercouse (i.e., penile-vaginal intercourse), committed by a man against a woman, under certain specified circumstances.
It added that the provision did not encompass other forms of non-consensual sexual acts such as oral or anal penetration, which were to be included under Section 377 of IPC.
Justice Sharma said that the acts such as anal intercourse or oral sex, which were earlier falling exclusively under the ambit of Section 377 of IPC – are now included within the ambit of Section 375(a) of IPC.
Setting aside the order framing charge against the husband, the Court noted that the wife did not specifically allege that the act of oral sex was performed against her will or without her consent.
It said that what was conspicuously absent was any allegation that the act complained of was non-consensual or performed under duress.
“In the absence of such an averment, the essential ingredient of lack of consent – central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar between any two adults – is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met,” the Court said.
Justice Sharma said that a charge cannot be framed merely on the basis of vague allegations or when the material on record does not disclose the essential ingredients of the alleged offence.
Title: SK v. THE STATE NCT OF DELHI
