The Uttarakhand High Court recently ruled that a husband cannot be charged with rape under Section 375 of the Indian Penal Code (IPC) for having anal sex with his wife. The court stated that if sexual acts between a husband and wife are not considered a crime under Section 375, then the husband also cannot be found guilty under Section 377 for engaging in what is referred to as “unnatural sex.”
Justice Ravindra Maithani, delivering the judgment, referred to Exception 2 of Section 375, which implies that sexual acts between a husband and wife are not classified as rape, meaning the consent between a married couple is presumed. The court also cited the Supreme Court’s decision in Navtej Singh Johar v. Union of India, which declared that consensual sexual acts between adults cannot be labeled as “unnatural offenses” under Section 377 IPC.
The case involved a man appealing against a trial court order summoning him based on accusations from his wife. She claimed that her husband had forced her into anal intercourse multiple times, causing serious injuries that required medical attention. Despite her suffering, she alleged that he continued these acts and subjected her to further physical abuse. Additionally, the wife accused the husband of exposing their son to sexual harassment by showing him explicit content.
In defense, the husband’s counsel argued that when two consenting adults engage in private sexual acts, no offense is made under the law. They also maintained that in a marriage, consent for sexual activities is implied and does not need to be obtained each time.
However, the wife’s lawyer contended that consent for “unnatural sex” is not given at the time of marriage and cannot be implied. They also argued that Section 377 punishes unnatural sex independently, with no exemption for husbands, and under Section 13(2)(ii) of the Hindu Marriage Act, 1955, sodomy is a valid reason for divorce.
The High Court ultimately sided with the husband’s argument, ruling that consensual anal sex between adults, even within marriage, does not constitute an offense under Section 377. The court quashed the summons against the husband under Section 377 but upheld charges under Sections 11 and 12 of the Protection of Children from Sexual Offences (POCSO) Act for allegedly sexually harassing his son.
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