The court was deciding a case where a wife had filed a case of non-consensual ‘unnatural’ (sex) offence against the husband.
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IN a recent judgment, the Madhya Pradesh High Court has held that no offence can be said to be made out under Section 377 of the Indian Penal Code (IPC) between a husband and wife.
Justice Sanjay Dwivedi made these observations while quashing a criminal case against the petitioner who is a member of the Madhya Pradesh State Legislative Assembly from the Gandhwani constituency. He belongs to the Scheduled Tribe community.
The accused filed a petition seeking to quash the FIR against him filed by his wife under Sections 294, 323, 376(2)(n), 377, 498-A and 506 of the Indian Penal Code.
Section 377 of the IPC penalises carnal intercourse against the order of nature with any man, woman or animal.
The Supreme Court in the Navtej Singh Johar versus Union of India read down Section 377 to decriminalise all consensual sex between adults.
However, non-penile–vaginal sex continued to be an offence if done without consent even between a husband and wife.
Unlike Section 377, Section 375, which defines rape, has an exception for the husband. For committing rape, as per Section 375(a), an offender is a ‘man’ who uses the part of the body: (a) Penis, as per Section 375(b) body parts other than penis, and 375(c) any other object.
Simultaneously, the said definition describes at the receiving end the body parts are (a) Vagina, (b) Urethra, (c) Anus, (d) Mouth and (e) other body parts.
Reading both the Sections together, Justice Sanjay Dwivedi observed that considering the offence under Section 377, i.e., “unnatural”, although the offender is not defined therein, but the body parts are well defined, which are also included in Section 375, i.e., carnal intercourse against the order of nature.
Justice Dwivedi noted that there is repugnancy in these two situations in the light of the definition of Section 375 and unnatural offence of Section 377.
“It is a settled principle of law that if the provisions of latter enactment are so inconsistent or repugnant to the provisions of an earlier one that the two cannot stand together, the earlier is abrogated by the latter,” he added.
He pointed out that any intercourse not for the purpose of procreation is unnatural but the same act as per the definition of Section 375 is not an offence if done with consent.
Thus, he reasoned, it cannot be treated as an offence under Section 377 of the IPC.
“In my opinion, the relationship between a husband and wife cannot be confined to their sexual relationship only for the purpose of procreation, but if anything is done between them apart from the deemed natural sexual intercourse [it] should not be defined as ‘unnatural’.
“Normally, sexual relationship between the husband and wife is the key to a happy connubial life and that cannot be restricted to the extent of sheer procreation.
“If anything raises their longing towards each other giving them pleasure and ascends their pleasure then it is nothing uncustomary and it can also not be considered to be unnatural that too when Section 375 IPC includes all possible parts of penetration of penis by a husband to his wife,” Justice Dwivedi held.
Explaining further, Justice Dwivedi stated that: “If sexual intercourse for procreation via penile—vaginal penetrative intercourse is considered to be natural sex and sexual relations of husband and wife is confined to that extent then in case if any husband or wife is not capable of procreation, then seemingly their relationship would become useless, but it does not happen.”
“The conjugal relationship between a husband and wife includes love that has intimacy, compassion and sacrifice, although it is difficult to understand the emotions of husband and wife who share intimate bond, but sexual pleasure is integral part of their relentless bonding with each other.
“Ergo, in my opinion, no barrier can be put in the alpha and omega of sexual relationship between the husband and his wife,” he held.
On the facts of the case, Justice Dwivedi observed that the wife had filed a written complaint on November 2, 2022 to the police without disclosing any act about the commission of ‘unnatural offence’ by the petitioner, though she made a note therein that “not to take any action on her complaint”.
Justice Dwivedi observed that the petitioner had filed a suit for damages against the wife and notice was served upon her on November 16, 2022, through her mobile phone and according to the petitioner, thereafter she made her mind lodged an complaint about a fictitious ‘unnatural offence’, that too without disclosing a specific date, place and time.
Justice Dwivedi observed that the wife holds a political post in the same political party as the husband.
The two, having known each other for long entered into a marriage but after some time their marriage became estranged.
Complaints were made by them against each other; the petitioner filed a suit for damages; an FIR was lodged by the wife without disclosing any specific date, time and place of commission of the alleged offence by the petitioner but only specified that from November 11, 2021 to November 16, 2022, the offence was committed.
The counsel for the wife sought to argue that the conduct of the petitioner fell under clause four of Section 375 which says a man is said to have committed the rape: “With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.”
Rejecting the argument, Justice Dwivedi held that the petitioner belongs to a tribe and marriage was solemnised according to the custom of the tribe under which a second marriage is legally permissible.
Therefore, the said clause of Section 375 was not attracted.
Justice Dwivedi also noted that during their married time, they visited several places and enjoyed their honeymoon.
Therefore, in his opinion, the act of the petitioner was not punishable for the offence under Sections 376(2)(n) and Section 377 of IPC.
“Quite apart, for constituting offence under Section 498-A IPC, there is no allegation of any demand of dowry. At most, the offence under the Protection of Women from Domestic Violence Act, 2005 could have been registered, but that too immediately after commission of such crime.
“For other offences, i.e., those under Sections 294 and 506 of the IPC, no date, place and time has been disclosed and as such the complaint in my opinion is a malicious prosecution filed by respondent No.2 as there was an inter se dispute between husband and wife,” Justice Dwivedi held.
