The Delhi High Court has ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes “unnatural” sexual acts, does not apply within the context of marriage when allegations of lack of consent are absent. The court quashed a trial court’s order that had directed the prosecution of a husband for allegedly performing oral sex on his wife under Section 377. This verdict underscores that the law does not recognize marital rape under this section, particularly where the key element of non-consent is not established.
Legal Clarification on Marital Consent
Justice Swarana Kanta Sharma examined the petition filed by the man against the trial court’s decision to frame charges under Section 377, which punishes unnatural sexual offenses. The court emphasized that the amended Section 375 of the IPC assumes implied consent for sexual acts, including anal and oral sex, within marriage. It noted that Section 377, therefore, cannot be used to prosecute a husband for consensual or non-consensual acts in a marital relationship unless lack of consent is explicitly proven.
The judgment further highlighted the absence of any clear allegation by the wife stating the sexual act was forced or non-consensual. Without this essential ingredient of lack of consent, the court found no prima facie case to proceed under Section 377. This follows the Supreme Court’s landmark Navtej Singh Johar judgment, which decriminalized consensual sexual acts between adults, including same-sex relations, emphasizing consent as the critical factor for criminalization.
Context and Contradictions in the Case
The court also observed that while the wife accused the husband of being impotent and claimed a conspiracy involving her husband and his father to exploit her family, she simultaneously alleged acts such as oral sex. This contradiction cast doubt on the prosecution’s case. The husband defended the marriage’s legality and the presumption of consent for marital sexual relations, arguing that the acts in question could not constitute an offense under Section 377.
This ruling reiterates that within marriage, sexual acts outside penile-vaginal intercourse are covered under the expanded definition of rape in Section 375(a) of the IPC, with protective exceptions for husbands. Thus, Section 377’s application is limited in marital contexts, preventing misuse where consent is implied unless otherwise explicitly denied.
