The Uttarakhand High Court recently held that a husband cannot be held guilty of rape under Section 375 of the Indian Penal Code (IPC) for having anal sex with his wife.
If a sexual act between husband and wife is not considered a crime under Section 375, then the husband cannot be found guilty under Section 377 IPC for engaging in ‘unnatural sex’ with his wife, Justice Ravindra Maithani observed.
Exception 2 to Section 375 IPC states that sexual acts between a man and his wife do not constitute rape, effectively meaning that consent between a married couple is implied.
While referring to the Supreme Court’s judgment in Navtej Singh Johar v. Union of India, which held that sexual acts between consenting adults would not be ‘unnatural offences’ under Section 377 IPC, the Court said,
“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 was hearing an appeal by a man against a trial court order summoning him in a case filed by his wife. It was alleged that he repeatedly engaged in anal intercourse with his wife against her will, causing severe injuries and bleeding that required treatment at several hospitals.
Despite her injuries, the wife claimed, her husband persisted with physical assaults and coercive sexual acts.
It was also alleged that the husband subjected their son to sexual harassment by showing the child explicit content.
Challenging the summons before the High Court, counsel for the husband argued that if two consenting adults engage in such acts privately, no offence is made out. It was further submitted that in case of a married couple, the consent of sex is informed and it is not required on each occasion.
On the contrary, the wife’s counsel argued that informed consent for unnatural sex cannot be given at the time of marriage and no wife would consent to it. It was also contended that Section 377 IPC independently punishes the act of unnatural sex without exceptions for husbands, and that under Section 13(2)(ii) of the Hindu Marriage Act, 1955, sodomy is a ground for divorce.
The Court agreed with the husband’s argument that a man and a woman indulging in anal sex with their free consent in private is no offence under Section 377 IPC.
In the case of a husband and wife, both of whom are adults, the consent is informed and explicit. Therefore, no further consent is required and no offence under Section 377 IPC is made out, the Court said.
While quashing the summons against the husband under Section 377, the Court upheld the summons against him for offences under Sections 11(entices a child for pornographic purposes) and 12 (sexual harassment) of the Protection of Children from Sexual Offences Act (POCSO) Act for allegedly sexually harassing his son.
