Can the Marital Rape Exception Immunize a Husband Under Section 377?

Devvrat Singh Shaktawat

28 Jan 2026 8:00 PM IST

High Court's Logic

The reasoning of High Courts broadly proceeds on the following propositions:

First, that 2013 amendment broadened the definition of 'Rape' u/s 375 IPC. S.375 is now no longer limited to penile-vaginal intercourse, but also covers other non-procreative penetrative sexual acts, including penetration of the vagina, anus, mouth or urethra by the penis, objects, or other body parts, as well as manipulative and oral acts as mentioned in 375 (a) to (d).^{^[4]}
Second, acts under these clauses (a) to (d) exhaustively overlap/cover those acts which were earlier covered u/s 377 IPC as “Carnal intercourse against the order of nature”. ^{^[5]}
Third, thus, there remains no sexual act between a man and a woman which can fall u/s 377 without also falling u/s 375.
Fourth, due to presence of 'MRE' in S.375, which states that in “Sexual intercourse or sexual acts by a man with his own wife, is not rape”; wife's consent is legally presumed/rendered immaterial for the purpose of S.375.
Fifth, Navtej Singh Johar held that S.377 now applies only to non-consensual acts.

Merging these together, courts concluded:-

If consent of wife is legally presumed/rendered immaterial for 'rape' due to 'MRE'; then absence or question of her consent loses significance for S. 377 as well because the physical acts in both offences are same.
Since the physical acts are same and S.375 is inapplicable, therefore, acquittal u/s 375 and conviction u/s 377 would be legally incoherent and mutually repugnant.
The new version of S. 375, by covering acts of S.377, has impliedly repealed it. And therefore, the older and “not well-equipped”^{^[6]} S.377 must give way to the newer and comprehensive S.375.

The author, without going into the factual merits of each case, humbly submits that the above line of legal reasoning contains few faults.

Fault I: Exception Jumping its Fence

The core error in HC's reasoning is this - the transposition of an offence-specific exception from S.375 into S.377 IPC. Exception 2 to Section 375 states only this - “sexual intercourse or sexual acts by a man with his own wife is not rape.” It does not say that “it is no offence”, or “is non-criminal” or “is non-penal”. Exception to rape merely negates one offence: rape, as defined in S.375.

This understanding is crucial. As per strict interpretation of penal laws, an exception negates liability only for the offence which it sits in. It does not delete liability for all offences involving similar conduct.

For example, an exception to murder u/s 300 does not remove, or even affect, liability under Sections 304 (Culpable homicide) or 304B (Dowry death). Exception to murder excepts only one offence, i.e. murder. Similarly, an exception to u/s.499 (Defamation) cannot be invoked as a defence to S.509 (Insult modesty of woman) citing that the act done is covered by both offences. Likewise, an exception to rape cannot be borrowed from S. 375 to neutralize a separate and independent offence u/s 377.

This objection is a structural one too. IPC deliberately distinguishes between General Exceptions (Chapter IV) and offence-specific exceptions (attached with individual offences). General exceptions, being general in nature (like insanity, mistake of fact, or private defence etc), apply across the IPC and all offences are subject to them. Section 6 IPC^{^[7]} clarifies this by providing that all the definitions etc in IPC “shall be understood subject to the exceptions contained in the Chapter entitled General Exceptions”. This is done precisely because those exceptions are meant to apply across offences, irrespective of the overlap of offence's ingredients.

By contrast, offence-specific exceptions operate narrowly. For example, exceptions like 'Sudden provocation' and 'Being a public servant' for Murder cannot be used to remove a charge of Dowry death even if the underlying act is virtually the same. It is because the offence specific exceptions address and qualify only the offence in which they appear. And the non-placement of 'MRE' in Chapter IV, but in S.375 alone, is conscious and self-limiting.

The High Courts, however, have treated the 'MRE' as if it were a 'general exception'. Or at any rate, is 'general' enough to absolve all penetrative sexual offences between spouses. This is something which the IPC or other judicial pronouncement nowhere whispers. Notably, only Himachal Pradesh High Court^{^[8]}, and Allahabad HC^⁹ rejected such reasoning and held that the husband can be prosecuted under S.377 if the act was non-consensual. HP HC points out the same fallacy by stating that “This is a clear case of judicial legislation. The legislature has not enacted any exception in S.377, and it is not permissible to incorporate an exception created under S.375 into S.377 of the IPC by any process of interpretation.”

Fault II: Same act, Same Offence?

It is correct that after 2013 amendment, several non-procreative sexual acts like anal penetration, oral or object-based penetration may overlap between Sections 375 and 377 IPC. But it would be unsound to conclude that if one physical act is covered by two offences, and one offence is rendered inapplicable, then the other must automatically fall.

Under IPC, the same set of facts can attract multiple offences. 'Theft' and 'Criminal misappropriation', 'Hurt' and 'Criminal force', 'Criminal misappropriation' and 'Criminal breach of trust', 'Insulting modesty' and 'Sexual harassment', 'Culpable homicide' and 'Murder' etc, are few examples of offences where the acts may overlap (totally or partially) but the non-applicability of one offence does not automatically mean non-applicability of other offence because of both involving similar conduct.

Further, the correct question is not “whether there exists any sexual act which can fall under S.377 without also falling under S.375”. The framing itself is irrelevant. Under penal statutes, the liability depends on the narrower issue: whether the ingredients of a particular offence are satisfied. For S. 377, two ingredients are required, i.e. (i) carnal intercourse against the order of nature, and (ii) absence of consent. If these ingredients are satisfied, offence u/s 377 is made out, regardless of the gender or relationship between the parties.

Conceptually also, it is erroneous to consider Sections 377 and 375 as identical offences because both are different in nature, purpose and scope. S.375, being gender-specific, protects the sexual autonomy of a woman from man whereas 377, being gender-neutral, protects bodily integrity of any person from non-consensual carnal penetration by any person. Where S. 375 is explicitly relationship-sensitive, having a marital exception, S. 377, by contrast, is relationship-neutral.

Fault III: Inventing an Implied Repeal

Implied repeal applies when two statutory provisions are so irreconcilably inconsistent that they cannot operate together, and where the legislative intent to replace the older provision is apparent. Neither condition is satisfied here.

In 2013, Parliament consciously amended 'Rape' but chose not to repeal, amend, or dilute S.377. It continued to operate fully until 2018 when Supreme Court in Navtej partially struck it down to the extent it criminalized consensual sexual acts between adults. But SC did not hold that S. 377 stands subsumed or repealed by S.375. It, instead, expressly preserved the offence for non-consensual acts. Moreover, Navtej neither examined the 'MRE' nor held/discussed that the same can be imported into S.377. Had S.377 truly been rendered ineffective/repealed impliedly by the 2013 amendment, the SC would have invalidated it in its entirety, rather than consciously preserving it partially.

Despite the absence of any MRE-specific basis in IPC or 2013 amendment or Navtej or legislative intent, the High Courts have erroneously read an implied repeal of S. 377.

Fault IV: Selective Slippery Slope

The Court's reasoning also applies its own logic selectively. If marital status is sufficient to neutralize liability u/s 377 on the ground of 'presumed consent' and 'overlapping physical act', then the same reasoning should also logically extend to other sexual and bodily offences arising from the same acts.

Consider a penetrative act by a husband against wife that also constitutes 'outraging her modesty' u/s 354 or 'sexual harassment' u/s 354A or 'use of criminal force' u/s 350 or grevious hurt u/s 325. Now will the court hold that since the alleged physical act overlaps with the S.375 act, the husband cannot be prosecuted for such offence(s) against his own wife because of her implied consent borrowed from S.375?

Notably, the same High Court which quashed S.377 offence also permitted prosecution under S.498A and 323 on the same facts. This inconsistency tempts one to raise a question here: if 'overlapping of acts' and 'MRE' are sufficient to wipe out S.377, then why do they not also wipe out S.354, S.354A, S.354B, S.323, S.325, S.498A, S.350, S.341, all of which may, and usually do, overlap factually with physical acts falling within S.375?

The answer lies in the fact that IPC does not treat marriage as a general exception for all the offences happening between husband and wife. And that 'MRE' negates only one offence, and not criminal liability in itself. The quashing of 377 and simultaneous preservation of S.323/498A is itself an admission that S.375 is not an umbrella provision exhaustively governing all sexual or bodily violence within marriage.

'Unnatural Offence' of S.377 is now no longer in the penal code as the 'Bharatiya Nyaya Sanhita' omits it completely. However, for the trials and FIR's registered pre-BNS, this issue still holds importance. The constitutional validity of 'MRE' is also pending decision by Supreme court in Hrishikesh Sahoo^{^[9]}. Presently, marriage does limit the offence of rape. But the use of its exception outside the offence may encourage judicial interpretations where ingredients of one offence (including but not limited to rape) and exception (including but not limited to MRE) are loosely borrowed, transferred and applied. ↑

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”, ↑
CRA No. 891 of 2019 ↑
CRL.REV.P. 990/2024, CRL.M.A. 22619/2024 ↑
Section 375 of IPC ↑
Section 377 IPC - 377. “Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” ↑
M.Cr.C. No. 54650/2023, para 28 ↑
6. Definitions in the Code to be understood subject to exceptions.—Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or illustration. ↑
Cr. MMO No. 1285 of 2024 (https://www.livelaw.in/high-court/himachal-pradesh-high-court/himachal-pradesh-high-court-unnatural-sex-wife-punishable-marital-rape-exception-section-377-ipc-292059) ↑
SLP(Cr.) 4063-4064 of 2022 ↑
The Author Is An Assistant Public Prosecutor At Faridabad, Haryana
Views Are Personal