The Uttarakhand High Court recently ruled that a husband cannot be charged with rape under Section 375 of the Indian Penal Code (IPC) for engaging in anal intercourse with his wife. Justice Ravindra Maithani clarified that if a sexual act between a husband and wife does not qualify as a crime under Section 375 IPC, the husband also cannot be prosecuted under Section 377 IPC for 'unnatural sex' with his wife. Exception 2 to Section 375 IPC implies consent between married couples, indicating that sexual acts within marriage are not considered rape.
The Court referred to the Supreme Court's decision in Navtej Singh Johar v. Union of India, which decriminalized consensual sexual acts between adults under Section 377 IPC. The Court stated that acts falling under Section 375 IPC, due to Exception 2, cannot be grounds for charges under Section 377 IPC.
The case involved a man appealing a trial court's summons, where his wife accused him of repeatedly engaging in non-consensual anal intercourse, causing severe injuries. The wife also alleged that her husband continued with physical assaults and coercive sexual acts despite her injuries and subjected their son to sexual harassment by exposing him to explicit content.
The husband's lawyer argued that consensual private acts between adults do not constitute an offence, and within marriage, consent for sex is understood and does not need to be reaffirmed each time. Conversely, the wife's lawyer contended that consent for unnatural sex cannot be assumed at marriage and that Section 377 IPC should independently punish such acts, with no exceptions for husbands. Additionally, under Section 13(2)(ii) of the Hindu Marriage Act, 1955, sodomy is grounds for divorce.
The Court sided with the husband's argument, stating that consensual anal sex between a married couple is not an offence under Section 377 IPC. It emphasized that within marriage, consent is informed and explicit, and no additional consent is needed, thus no offence under Section 377 IPC is established.
The Court quashed the summons against the husband under Section 377 but upheld the summons for offences under Sections 11 and 12 of the Protection of Children from Sexual Offences (POCSO) Act for allegedly sexually harassing his son. Advocate Aditya Singh represented the petitioner, while Advocates Saurabh Pandey and Navneet Kaushik represented the respondents.
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TAGS: Uttarakhand High Court Section 375 IPC Section 377 IPC consensual anal sex marital consent Navtej Singh Johar Protection of Children from Sexual Offences (POCSO) Act
