‘Can’t restrict sex between spouses to procreation’ — MP HC order quashing ‘unnatural sex’ FIR

Madhya Pradesh High Court noted that since 'relationship between husband & wife falls into marital rape exception to section 375, pre-requisite of consent becomes immaterial'.

Principal seat of the Madhya Pradesh High Court in Jabalpur | Representational image | Commons

New Delhi: A husband cannot be charged for an offence under section 377 (unnatural sex) of the Indian Penal Code (IPC), the Madhya Pradesh High Court held in an order Thursday, adding that the sexual relationship between a husband and wife is key to a connubial life and cannot be restricted “to the extent of sheer procreation”.

A single-judge bench of Justice Sanjay Dwivedi made the assertion in an order quashing an FIR against the petitioner. The case against the petitioner was made out on the basis of a complaint filed against him by his wife at the Naogaon police station.

The petitioner (husband) and the respondent (wife) told the court that they got married last April but their relationship later became estranged.

In a complaint she filed with the police, the wife accused the husband of having engaged in unnatural sex, without disclosing any specific date of the alleged offence. The husband, in turn, cited the absence of specific instances to file a petition in the high court seeking directions to the police to quash the FIR, which he described as “fictitious”.

The key contention that the court looked into was whether the offence of unnatural sex (under Section 377) between husband and wife can be viewed the same as the offence of rape under section 375 of the IPC.

The Supreme Court in 2018 read down section 377 to decriminalise consensual sex between persons of the same gender. However, the section was not struck out from the IPC and continues to be invoked in cases of non-consensual or forced sex in same-sex relationships. It also penalises bestiality.

Lately, this section is also invoked by married women who suffer sexual abuse or violence at the hands of their husbands, owing to the marital rape exception in section 375 (rape). 

‘Prerequisite of consent becomes immaterial’

The court, referring to the amended definition of section 375, said that the provision which defines rape under this law “includes all possible forms of penetration of penis to any extent into the vagina, urethra or anus of a women against the will or consent and since, the relationship of a husband and wife falls into the exception to this provision, the pre-requisite of consent becomes immaterial in that relationship”.

It ruled that since any unnatural offence cannot be made out between a husband and wife, section 377 of the IPC would not be applicable in this case.

While critically analysing the two provisions, sections 375 and 377, the court in its order said, “…when the same act as per the definition of Section 375 is not an offence, then how it can be treated to be an offence under Section 377 IPC.

“…the relationship between the 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 should not be defined as unnatural.”

While quashing the FIR, the court also said that the complaint lodged by the respondent was ‘maliciously instituted’ with an ulterior motive of ruining the petitioner’s career and standing in society.

Previously, the high court in Karnataka too looked at the constitutionality of the marital rape exception in section 375. In 2022, the high court took a diverging opinion to say that the exception does not give the husband absolute protection from prosecution for rape.

It relied extensively on the recommendations of the J.S. Verma Committee which sought the deletion of this exception from the provision. Further, the court also relied on the principles of Article 14 and said that a “woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC”.

“A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her,” read the judgement by the Karnataka high court.

The decision is under challenge in the Supreme Court, which has passed an ad-interim stay on the high court order.

(Edited by Amrtansh Arora)