Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
The Madhya Pradesh High Court recently ruled that a man engaging in unnatural sex with one's wife is not rape since marital rape is not recognized as an offence under Indian Penal Code, and consent becomes immaterial in such cases.
Single-judge Justice Gurpal Singh Ahluwalia said that a husband engaging in anal sex with his wife will not amount to rape even if it is non-consensual as long as the wife was not below 15 years of age.
"In view of the amended definition of "rape" under Section 375 of IPC by which the insertion of penis in the anus of a woman has also been included in the definition of "rape" and 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 said.
Hence, it quashed a first information report (FIR) filed against a husband, noting that the act of unnatural sex by a husband with his legally wedded wife residing with him is not an offence under Section 377 of the Indian Penal Code (IPC).
Consequently, no further deliberations were required regarding whether the FIR was lodged on the basis of frivolous allegations, the Court said.
Justice Gurpal Singh Ahluwalia
The Court, however, added that the only exception to this would be Section 376B of IPC where the sexual act with wife would be rape if the act is during the time when they are living separately on account of judicial separation or otherwise.
In the present case, the wife had lodged an FIR against her husband, alleging that after her marriage, upon returning to her matrimonial house for the second time, he engaged in unnatural sexual intercourse with her in multiple occasions.
The husband then moved the High Court challenging the FIR.
He argued that any instance of unnatural sex between him and his wife would not amount to an offence under Section 377 of the IPC.
Upon examining Section 375(A) of the IPC (as amended by the 2013 Amendment Act), the Court observed that engaging in penetration of a woman's mouth, urethra, or anus with the penis without consent would constitute the offence of rape.
However, Exception 2 of Section 375 exempts sexual intercourse or sexual acts between a man and his own wife provided the wife is not under fifteen years of age and the same will not be considered as rape.
"Thus, 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," the Court noted.
Therefore, having determined that unnatural sex between a husband and his legally wedded wife, while residing together, does not constitute an offence under Section 377 of the IPC, the Court allowed the plea by the husband and quashed the FIR.
XXX v. State (2024 MPHC)
