The Uttarakhand High Court has ruled that a husband cannot be held guilty of rape under Section 375 of the Indian Penal Code (IPC) for having anal sex with his wife. Justice Ravindra Maithani observed that if a sexual act between husband and wife is not considered a crime under Section 375, then the husband cannot be found guilty under Section 377 IPC for engaging in ‘unnatural sex’ with his wife.
Section 375 IPC, Exception 2, states that sexual acts between a man and his wife do not constitute rape, implying consent within marriage. Referring to the Supreme Court’s judgment in Navtej Singh Johar v. Union of India, which decriminalized consensual sexual acts between adults under Section 377 IPC, the Court stated, “The act alleged also falls within Section 375 IPC, and by operation of Exception 2, a husband cannot be held guilty under Section 375 IPC for such an act. Consequently, Section 377 IPC cannot be invoked against the husband.”
The Court was hearing an appeal by a man against a trial court order summoning him based on his wife’s allegations. She claimed her husband repeatedly engaged in anal intercourse against her will, causing severe injuries and bleeding that required hospital treatment. Despite her injuries, she alleged that her husband continued with physical assaults and coercive sexual acts. Additionally, she accused him of sexually harassing their son by showing explicit content.
The husband’s counsel argued that private consensual acts between adults are not offenses under Section 377 IPC. He further contended that within marriage, consent to sex is implied and does not need to be given on each occasion. The wife’s counsel countered that informed consent for unnatural sex cannot be presumed at the time of marriage and that Section 377 IPC punishes such acts without exceptions for husbands. He also noted that sodomy is a ground for divorce under Section 13(2)(ii) of the Hindu Marriage Act, 1955.
The Court agreed with the husband’s argument, stating that consensual anal sex between adults in private is not an offense under Section 377 IPC. In the case of a married couple, both adults, consent is considered informed and explicit. Therefore, no further consent is required, and no offense under Section 377 IPC is made out.
While quashing the summons against the husband under Section 377 IPC, the Court upheld the summons for offenses under Sections 11 (enticement of a child for pornographic purposes) and 12 (sexual harassment) of the Protection of Children from Sexual Offences (POCSO) Act for allegedly sexually harassing his son.
This ruling emphasizes the concept of implied consent in marriage and clarifies the legal stance on marital sexual relations under Indian law.
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