Delhi HC: Husband Cannot Be Prosecuted Under Section 377 IPC for Anal or Oral Sex With Wife
The Delhi High Court has clarified that a husband cannot be prosecuted under Section 377 of the Indian Penal Code (IPC) for engaging in anal or oral sex with his wife. The Court dismissed charges framed against a husband, stating that the provision does not apply in a marital relationship.
Justice Swarana Kanta Sharma observed that this interpretation aligns with the reasoning of the Supreme Court in Navtej Singh Johar. The Court reiterated that marital rape is not recognised in Indian law, as Exception 2 to Section 375 IPC provides that sexual intercourse by a man with his wife (above 15 years of age) does not amount to rape.
The Court explained that since the law presumes a wife’s implied consent for sexual intercourse within marriage, this also extends to other sexual acts such as oral or anal sex. Therefore, a husband remains protected from prosecution under Section 377 IPC.
The ruling came after a wife lodged an FIR alleging that her husband could not consummate the marriage and that his family physically assaulted her. She also accused her husband and father-in-law of conspiring to exploit her family financially.
Justice Sharma noted that before the 2013 amendment, Section 375 IPC was limited to penile-vaginal intercourse, while other forms of sexual acts were covered under Section 377 IPC. However, after the amendment, sexual acts like oral and anal penetration are now included in Section 375(a).
The Court highlighted that the wife did not specifically allege that oral sex was forced or performed without her consent. The absence of such an allegation meant that the essential ingredient of lack of consent—necessary to constitute an offence under Section 377 IPC—was missing.
“In the absence of clear allegations of non-consent, even a prima facie case cannot be made out,” the Court held, adding that charges cannot be framed on vague or unsupported claims.
Accordingly, the Delhi High Court set aside the order framing charges against the husband under Section 377 IPC.
Be a part our social media community:
Facebook: https://www.facebook.com/IndianMan.in?mibextid=ZbWKwL
Instagram:
https://www.instagram.com/indianman.in?igsh=MWZ2N3N0ZmpwM3l3cw==
