Forced Unnatural Sex By Husband Is Cruelty U/S 498A IPC, But Not Rape Due To Marital Exception: MP High Court

The Madhya Pradesh High Court, in a husband's petition seeking quashment of FIR, observed that while forced unnatural sex by a husband upon his adult wife cannot be prosecuted as rape under Section 376, it would amount to cruelty under Section 498A of the Indian Penal Code. 

The bench of Justice Rajesh Kumar Gupta observed; 

"But, this Court is also of the opinion that forced unnatural sex by a husband on his wife amounts to cruelty under Section 498A IPC, but cannot be prosecuted as rape under Section 376 IPC as in a Section 377 context (unnatural acts), the marital rape concept is not recognized under current law because of the Express marital exception in Section 375". 

Per the facts of the case, the couple got married in June 2022. At the time of marriage, the wife's parents of their parents on their own volition, gifted 21 Lakhs in cash and 15 tolas in Gold.

Shortly thereafter, disputes arose between the couple over trivial matters, during which the husband alleged subjected the wife had been subjected to physical abuse. One specific incident was narrated wherein an altercation took place prior to the husband attending a meeting. After the meeting, the husband found the wife at a temple and insisted that she return home. Upon refusal, the husband allegedly assaulted her and smashed her head. 

Subsequently, the wife returned to her parental home and complained the Mahila Thana. However, the same was resolved after counselling, and she rejoined the matrimonial home. The wife alleged that the husband used to forcibly establish physical relations with her and subjected her to unnatural sexual acts without her consent.

In August 2023, she alleged that her husband again assaulted her, following which an FIR was filed for offences of cruelty (Section 498A), repeated rape (Section 376(2n)), unnatural offences (Section 377), voluntarily causing hurt (Section 323) and for obscene acts and songs (Section 294) of the Indian Penal Code. 

The husband approached the Court seeking quashment of the FIR, which was later withdrawn with liberty to file afresh with better particulars with the aid of a chargesheet. Subsequently, he filed a bail application under which was dismissed by the Trial Court. However, the High Court granted him anticipatory bail via order of November 2, 2023. 

The counsel for the husband contended that the FIR wasa  counterblast to the divorce petition filed by the husband before the Family Court on September 6, 2023. It was further argued that the husband had discovered WhatsApp messages and call records indicating that the wife was in contact with other individuals. Upon confronting her, she allegedly initiated the present proceedings to falsely implicate the husband. 

The court noted that the offences under Section 376 and 377 of IPC could not be sustained in view of the Exception 2 to Section 375 of IPC, which provides immunity to a husband from proseuction for rape against his wife. 

However, the court clarified that forced unnatural sexual acts by a husband on his wife amounts to cruelty under Section 498A of IPC, though such acts do not constitute rape punishable under Section 376 of IPC. 

The court further examined the amended definition of Section 375 IPC and held that,

"two things are common in the offence of Section 375 and Section 377 firstly the relationship between whom offence is committed i.e. husband and wife and secondly consent between the offender and victim. As per the amended definition, if offender and victim are husband and wife then consent is immaterial and no offence under Section 375 is made out and as such there is no punishment under Section 376 of IPC". 

The court further clarified "The offence between husband and wife is not made out under Section 375 as per the repeal made by way of amendment and there is repugnancy in the situation when everything is repealed under Section 375 then how offence under Section 377 would be attracted if it is committed between husband and wife". 

The court observed that although the offence under Section 377 IPC was alleged, no relevant medical evidence was submitted and the prosecution only relied on iral allegations despite the trial commencing. The medical report further did not reveal any injury or signs suggesting unnatural sexual acts. The examining doctor also did not provide any definite opinion regarding fellatio or byggery, as no injuries were detected. 

The court, thus, expressed doubt over the validity of the allegations under Section 377 of IPC, particularly in light of the dispute pending before family court. 

Therefore, the court directed; 

"Hence, considering overall facts and circumstances of the case, the instant petition is partly allowed to the extent that offence alleged against the petitioner under Sections 376(2)(n) and 377 of the IPC registered vide crime No.971/2023 is hereby quashed. However, the offence under the same crime number under Sections 323, 294 and 498-A is hereby maintained". 

Case Title: SM v State [MCRC-54650-2023]

For Husband: Advocate Harshit Sharma

For State: Public Prosecutor Satendra Singh Sikarwar

For Wife: Advocate Yogesh Singhal

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