Delhi High Court: Section 377 IPC Does Not Apply to Consensual Oral or Anal Sex in Marriage
The Delhi High Court recently decided that a husband cannot be charged under Section 377 of the Indian Penal Code (IPC) for having consensual oral or anal sex with his wife. The court dismissed a woman’s complaint against her husband, saying there was no evidence of forced or non-consensual acts.
Justice Swarana Kanta Sharma referred to the Supreme Court’s judgment in the Navtej Singh Johar case. The Court emphasized that the current law does not recognize the idea of marital rape in India. Under Exception 2 to Section 375 of IPC, sexual intercourse between a husband and wife is not considered rape if the wife is above 15 years old. This means that consent is assumed in a marriage.
According to the court, this implied consent also covers other sexual acts like oral or anal sex. Therefore, Section 377 IPC, which earlier criminalized such acts, cannot be used against a husband in a marital relationship unless the act was forced or non-consensual.
The court overturned an earlier decision to charge the husband under Section 377. The wife had filed a police complaint, saying her husband could not consummate the marriage and accused him and his family of physical abuse and a conspiracy to extort money.
Justice Sharma noted that before 2013, Section 375 IPC only covered forced vaginal intercourse. Other acts like oral or anal sex were covered under Section 377 IPC. However, after the 2013 amendment, these acts are now included under Section 375(a) if they are non-consensual.
In this case, the wife did not say that the oral sex was done against her will or without consent. The Court pointed out that no clear claim of lack of consent or force was made, which is necessary to build a case under Section 377 post-Navtej Singh Johar ruling.
As a result, the Court found that there was no strong evidence or legal basis to move forward with charges against the husband. A case cannot be made just on vague accusations without proof of forced or non-consensual acts.
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