In a repeat of another such verdict last year, the Madhya Pradesh High Court has said that a husband having anal sex with his wife without her consent is not unnatural offence nor is it rape.
—
RECENTLY, the Madhya Pradesh High Court quashed a first information report (FIR) against a husband who was sought to be prosecuted by his wife under Section 377 (unnatural offences) of the Indian Penal Code (IPC).
Justice G.S. Ahluwalia noted that as per the amended definition of ‘rape’ under Section 375 of the Indian Penal Code (IPC), the insertion of a penis in the anus of a woman has also been included in the definition of ‘rape’.
Justice Ahluwalia further observed that any sexual intercourse or sexual act by the husband with her wife, not below the age of fifteen years, is not rape and the absence of consent of the wife for an unnatural act loses its importance because marital rape has not been recognised so far.
Justice Ahluwalia was ruling on a petition filed by the husband seeking to quash the FIR against him.
In Navtej, the Supreme Court read down Section 377 to decriminalise all consensual sex between adults.
It is not the first time that the Madhya Pradesh High Court has quashed a case under Section 377 of the IPC. Last year also, the same high court quashed an FIR against a husband for the offence of non-consensual ‘unnatural’ sex with his wife.
Allegations against the husband
On August 24, 2022, an FIR was lodged against the husband under Sections 377 and 506 (criminal intimidation) of the IPC. The wife had alleged that she was being harassed by her in-laws physically and mentally on account of non-fulfilment of the demand for dowry.
Accordingly, from February 14, 2020, she started residing in her father’s house. She alleged that after the marriage, when she went to her matrimonial house for the second time, then on the intervening nights of June 6, 2019, and June 7, 2019, the husband had committed unnatural sex with her and thereafter on multiple occasions, he committed unnatural sexual intercourse with her and had also extended a threat that in case information in this regard was given to anybody, he would divorce her.
Dichotomy in the law
While Section 375 allows consensual penetrative acts (the definition of ‘penetration’ includes oral and anal sex), Section 377 makes the same acts of penetration punishable irrespective of consent. This created a dichotomy in the law as noted by the Supreme Court in Navtej Singh Johar versus Union of India.
Section 377 of the IPC penalises carnal intercourse against the order of nature with any man, woman or animal.
Unlike Section 377 of the IPC, Section 375 of the IPC, which defines rape, has an exception for the husband.
In Navtej, the Supreme Court 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 of the IPC, Section 375 of the IPC, which defines rape, has an exception for the husband. For committing rape, as per Section 375(a), an offender is a ‘man’ who uses a penis; as per Section 375(b), body parts other than penis; and as per Section 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.
In Navtej, the Supreme Court noted that despite the Criminal Law (Amendment) Act, 2013 coming into force by virtue of which Section 375, IPC was amended, whereby the words ‘sexual intercourse’ in Section 375 were replaced by four elaborate clauses from (a) to (d) giving a wide definition to the offence of rape, Section 377, IPC remained in the statute book in the same form.
“Such an anomaly, if allowed to persist, may result in a situation wherein a heterosexual couple who indulges in carnal intercourse with the willful and informed consent of each other may be held liable for the offence of unnatural sex under Section 377 IPC, despite the fact that such an act would not be rape within the definition as provided under Section 375 IPC,” the Supreme Court highlighted in the Navtej judgment.
The issue of whether the husband could be prosecuted for non-consensual ‘unnatural’ sex was not the subject matter in Navtej.
Ruling of the high court
The high court posed a question to itself for consideration as to whether the husband during the subsistence of marriage while residing together can be said to be guilty of marital rape or, in other words, whether the wife living with her husband during the subsistence of marriage can claim that a sexual act was committed without her consent?
Justice Ahluwalia said Section 375 Exception 2 of the IPC provides 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 only exception to this provision is Section 376B of IPC where the sexual act with his own wife during the separate living on account of judicial separation or otherwise would be a rape.
In March 2022, Justice M. Nagaprasanna of the Karnataka High Court held that the exemption of the husband from committing rape cannot be absolute.
The Supreme Court, in Independent Thought versus Union of India, read down the age of fifteen years of age to mean the age of eighteen, regardless of the status of the marriage.
Justice Ahluwalia reading Section 375 and 377 together, opined that when rape includes the insertion of a penis in the mouth, urethra or anus of a woman and if that act is committed with his wife then the consent of the wife becomes immaterial.
Justice Ahluwalia also relied upon a decision of a coordinate Bench of the high court in Umang Singhar versus State of Madhya Pradesh, Through Station House Officer and Another.
Marital rape exception not absolute
In March 2022, Justice M. Nagaprasanna of the Karnataka High Court held that the exemption of the husband from committing rape cannot be absolute. He also said no exemption in law can be so absolute that it becomes a licence for the commission of a crime against society.
He upheld the Order of a sessions court framing a rape charge against the husband even as Exception 2 to Section 375 (rape) of the IPC exempts the husband from the purview of the offence of rape.
Justice Nagaprasanna held that a brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. He also added the offence under Section 377 of the IPC against the husband.
Also read: Supreme Court to hear petitions challenging marital rape exception in Indian Penal Code
The appeal filed by the husband against this Order is pending in the Supreme Court with a stay of the trial.
Delhi High Court gave a split judgment
In May 2022, a division Bench of the Delhi High Court gave a split verdict on the criminalisation of marital rape. Justice Rajiv Shakdher, who headed the Bench, struck down Exception 2 to Section 375 as being violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution.
In May 2022, a division Bench of the Delhi High Court gave a split verdict on the criminalisation of marital rape.
Justice C. Hari Shankar, however, chose to disagree with the opinion given by Justice Shakdher.
He held that the second exception to Section 375 does not violate Article 14, and is based on an intelligible differentia, having a rational nexus with the object both of the impugned Exception as well as Section 375 itself.
He further held it does not violate Articles 19(1)(a) and 21. He held that none of the grounds on which a statute could be struck down existed in the present case. He added that the court could not substitute its subjective value judgment for that of a democratically elected government.
Multiple appeals filed against the split verdict are pending before the Supreme Court.
