The Uttarakhand High Court in a recent verdict observed that a husband cannot be held guilty for performing unnatural sex with wife under Section 377 of IPC as Section 375 decriminalises marital rape.
The high court read together the provision of IPC's Section 375 (Rape) and Section 377 (As read by Supreme Court in Navtej Singh Johar case where it decriminalised same-sex relations between two consenting individuals.)
Under Section 375 (which defines rape) sexual intercourse between the husband and wife is not punishable under an exception (2) made to it for married couples. Since, the Navtej Johar verdict decriminalised acts of unatural sex between consenting adults and Marriage is assumed as consent for sexual relations in Indian laws, the high court said that husband cannot be charged for performing unantural sex with wife.
Exception 2 to Section 375 IPC states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
The high court was dealing with a application seeking modification of an order of the Additional Sessions Judge/Special Judge (POCSO) Haridwar summoning a husband to face charges under Section 377 IPC (for allegedly committing unnatural sex with his wife) as well as Sections of POCSO Act (for allegedly sexually harassing his son).
The counsel for the wife argued in court that there cannot be informed consent at the time of marriage for unnatural sex. It was also argued that Section 377 IPC is an independent provision which penalises forceful unnantural-sex and does not make any exception in favour of a husband. The counsel further contended that under Section 13(2)(ii) of the Hindu Marriage Act, 1955, sodomy would be a ground for divorce.
"A bare reading of the above Section does not indicate that it would apply in the situation when the offence of sodomy was committed between husband and wife. If the husband is guilty of sodomy in some cases where the victim is not wife, this Section 13(2)(ii) of the Hindu Marriage Act, 1955 will definitely come into play. As stated, if an act between the husband and wife is not punishable under Section 375 IPC due to operation of Exception 2 to it, the same act may not be an offence under Section 377 IPC. Therefore, arguments advanced on this point have less merit for acceptance," the high court held.
The wife had accused the husband of committing forcefull anal sex with her on multiple occasions.
"In such a situation the provisions of Section 377 IPC cannot be invoked against the husband. Therefore, this Court is of the view that Section 377 IPC is not prima facie made out against the petitioner," the court held.
In this case, the wife alleged that the husband engaged in repeated acts of anal intercourse with the respondent against her will, causing her severe injuries and bleeding, requiring medical attention at multiple hospitals. She accused husband of physical assault and forcing himself on her despite her injuries.
The husband is also accused of subjecting their child to inappropriate behaviour by showing explicit content on his laptop to coerce the wife to succumb to his demands concerning anal sex or forceful oral sex. The man is also accused of urinating in front of the room, showing his private part to the young child and having oral sex forcibly in front of the child.
The high court upheld the summons in the POCSO offence, but set aside the summons to him over charges of unnatural sex with wife.
"...this Court is of the view that the impugned summoning order requires interference to the extent that no offence under Section 377 IPC is made out against the revisionist. But, offence under Section 11 read with Section 12 of the Protection Of Children From Sexual Offences Act, 2012 is prima facie made out against the revisionist," the high court held.