Uttarakhand High Court: Husband Cannot Be Charged with Rape for Anal Sex with Wife
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 said that such an act is covered under marital consent, and therefore not punishable under rape laws.
Justice Ravindra Maithani explained that according to Exception 2 of Section 375 IPC, any sexual act between a husband and wife is not considered rape. Because of this exception, the husband cannot be charged under Section 377 IPC (which deals with unnatural sex), either.
The court referred to the Supreme Court’s ruling in Navtej Singh Johar v. Union of India, which said that consensual sexual acts between adults cannot be treated as crimes under Section 377.
In this case, the husband appealed against a trial court order that summoned him after his wife accused him of repeatedly forcing her into anal sex, causing serious injuries. She claimed he continued physical abuse despite her pain and objections. She also alleged that he showed inappropriate content to their son, amounting to sexual harassment.
The husband’s lawyer argued that no offence was committed because sexual acts between consenting adults, especially within marriage, do not need separate consent every time.
The wife’s lawyer, however, said that no woman would agree to such acts at the time of marriage and that Section 377 should apply to husbands too. She also noted that under the Hindu Marriage Act, sodomy is a valid reason for divorce.
The High Court supported the husband’s view, saying that when two adults in a marriage engage in anal sex with mutual consent, it does not count as an offence under Section 377 IPC. It also clarified that within marriage, general consent applies unless otherwise proven.
However, the court did not dismiss other serious charges. It upheld the summons against the husband under the Protection of Children from Sexual Offences (POCSO) Act, particularly Sections 11 and 12, for allegedly sexually harassing his son.
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