Non-Consensual 'Unnatural Sex' By Husband With Wife Not Rape But An Offence U/S 377 IPC: Allahabad High Court

In a significant Judgment, the Allahabad High Court has held that unnatural sexual intercourse by a man with his wife without her consent, even if she is above 18 years, would be punishable u/s 377 IPC though that may not be rape as per Section 375 IPC. “…it is clear that carnal sex, other than penile-vaginal intercourse is not a natural orientation of sex for the majority of women, therefore the same cannot be done by the husband, even with his wife without her consent,” the bench observed in its order. A bench of Justice Arun Kumar Singh Deshwal thus disagreed with the Judgements of Madhya Pradesh High Court (read here, here and here) declaring unnatural sex by a man with his wife, even against her consent, to be not an offence u/s 377 IPC. Here it may be noted that MP High Court's view stemmed from the reasoning that since such 'unnatural' sex by a man with his wife has not been made punishable as rape u/s 375 IPC, the same would also not be an offence under Section 377 IPC. Read more about the Madhya Pradesh High Court's reasoning here : Unnatural Sex By A Man With Wife Not Rape, Absence Of Woman's Consent Immaterial: MP High Court “This Court respectfully disagrees with the above reasoning of Madhya Pradesh High Court for the reason that a wife may be above 18 years but as an individual identity she has a choice for sexual orientation that has to be protected, and merely because she is a wife of a man, her fundamental right not to give consent against the unnatural sex cannot be taken away. A woman despite being a wife also has individual right to particular sexual orientation and dignity,” the single Judge remarked. It may, however, be noted that Allahabad HC's judgment may not have application to the acts committed on or after July 1, 2024, the day Bharatiya Nyaya Sanhita (BNS) came into effect, as the BNS does not include provisions for punishing non-consensual "unnatural" sexual acts. The Allahabad High Court was essentially dealing with the plea of one Imran Khan @ Ashok Ratna, who had moved the HC challenging a case lodged against him under Sections 498-A, 323, 504, 506, 377 I.P.C. and 3/4 Dowry Prohibition Act. It was primarily argued by his counsel that the FIR by his wife had been lodged with a considerable delay and that no offence under Section 377 I.P.C. is made out as the applicant and opposite party No.1 are husband and wife. On the other hand, the counsels for the state as well as the wife opposed the plea by stating that a prima facie case was made out against the applicant. Having heard the submissions of both sides, the Court examined the question as to whether carnal intercourse by the husband with his wife against her wishes will amount to an offence u/s 377 IPC. The Court referred to the findings of the Supreme Court ruling in the case of Navtej Singh Johar vs. Union of India 2018 to note that though carnal intercourse like oral sex or anal sex may be unnatural for a major part of the society, but still, it is a natural orientation of minority group of the LGBTQIA+ community and thus, the same wouldn't amount to rape an offence if intercourse is wilful. The single judge further noted that the Top Court had further clarified that if any act of carnal intercourse between the individuals is done without the consent of anyone of them, then the same would be punishable u/s 377 IPC. Following the mandate of the Supreme Court's judgment in this case, the High Court concluded that carnal sex by a husband, other than penile-vaginal intercourse, which is not a natural orientation of sex for the majority of women, without her consent, would amount to an offence under Section 377 IPC. In view of the above discussion, the Court rejected the submission of the counsel for the applicant that no offence u/s 377 IPC is made out against the applicant. The bench also took into account that there is a specific allegation of cruelty and also the harassment against the husband for the demand of dowry, as well as committing unnatural carnal sex upon his wife against her wishes. Therefore, the Court, finding a prima facie case against the petitioner, rejected his plea. Case title - Imran Khan @ Ashok Ratna vs. State of U.P. and Another 2025 LiveLaw (AB) 164 Case Citation : 2025 LiveLaw (AB) 164 Click Here To Read/Download Orded

Non-Consensual 'Unnatural Sex' By Husband With Wife Not Rape But An Offence U/S 377 IPC: Allahabad High Court

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