The Delhi High Court has cancelled a lower court’s order that said a man should be prosecuted for having “unnatural” sex with his wife.
The High Court said that Section 377 of the Indian Penal Code does no apply to married couples in such cases, especially when there is no claim that he wife did not agree to it. The court explained that the law does not treat such acts as a crime within marriage.
Justice Swarana Kanta Sharma was looking into a man’s request to cancel a trial court’s order that charged him under Section 377 of the Indian Penal Code allegedly forcing his wife to have oral sex.
In the decision given on May 13, the court said that the law does not recognize the idea of marital rape.
“There is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse within a marital relationship,” the court said.
No Consent Claim, No Case Under Sec 377, Says Court
The Delhi High Court noted that the wife did not clearly say whether the act was done against her will or without her consent. say whether the act was done against her will or without her consent. The court said, “The essential ingredient of lack of consent- central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar (case) between any two adults- is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met.”
In the Navtej Singh Johar case, the Supreme Court ruled that consensual sexual relationships between adults, including same-sex relationships, are not a crime.
The court said, “No prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside.”
The bench also explained that acts like anal or oral sex are now included in the definition of rape under Section 375(a) of the IPC. However, since the law gives husbands protection under the “exception” to the rape law, there is no reason to believe that this protection wouldn’t apply to the petitioner.
Section 377 Doesn’t Apply in Marriage, Rules Court
The court said, “In the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife. Such an interpretation would be in line with the reasoning and observations of the Supreme Court in Navtej Singh Johar (case).”
The case records also showed that the wife had claimed the man was “impotent” and had accused him and his father of planning the marriage to have illegal relations and take money from her family.
Man Says Marriage Means Consent; Judge Finds Wife’s Claims Confusing
The man said in his defence that the marriage was legally valid, which means there is an assumed agreement for sexual activities that both agree to. Because of this, the acts he was accused of cannot be called a crime under Section 377.
The judge noticed a clear contradiction in the wife’s statements, she said the man was sexually unable, but at the same time, she accused him of doing things like oral sex.
Also Read: Hailstorm Hits IndiGo Flight To Srinagar, Causing Turbulence and Panic; Aircraft Lands Safely
