S. 377 IPC | 'Unnatural' Sex By Husband With Wife Without Her Consent Is Not An Offence: Chhattisgarh High Court

The Chhattisgarh High Court on Monday held that a husband cannot be prosecuted for commission of the offence of rape under Section 376 or unnatural sex under Section 377 of the Indian Penal Code (IPC) for having any sexual intercourse, including every unnatural sex, with his major wife even without her consent.Holding 'consent' of wife in sexual intercourse/unnatural intercourse to be insignificant, the Single Bench of Justice Narendra Kumar Vyas observed –“Thus, it is quite vivid, that if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with her wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance, therefore, this Court is of the considered opinion that the offence under Section 376 and 377 of the IPC against the appellant is not made out.”Prosecution CaseThe appellant is the husband of the deceased-victim. In the night of 11.12.2017, the appellant committed unnatural sex with the victim against her will. It was alleged that the appellant inserted his hand in the 'anus' of the victim due to which the victim complained pain and subsequently, she was admitted to Hospital for treatment. A report was made to the Police Station and an FIR under Section 377 IPC was registered against the appellant. Dying declaration of the victim was recorded by an Executive Magistrate on 11.12.2017 before whom she made a statement that due to forceful sexual intercourse by her husband, she became ill. Thereafter, she died on the same day.The doctor, who conducted post-mortem examination over the dead body of the deceased, opined that two perforations on rectum of the victim were present and he opined the cause of death to be peritonitis and rectal perforation.The trial Court after appreciating the evidence on record convicted the appellant for commission of offences under Sections 377 (unnatural offences), 376 (punishment for rape) and 304 (punishment for culpable homicide not amounting to murder) of the IPC and sentenced him to undergo RI for 10 years with default stipulations. Being aggrieved, he filed this criminal appeal before the High Court.Court's ObservationsJustice Vyas framed two fundamental questions to be answered by the Court, viz. whether offences under Sections 376 and 377 of the IPC are attracted when the accused and the victim were husband and wife; and whether offence under Section 304, IPC is attracted in the present set of facts.To answer the first question, the Judge referred to the bare provisions of Sections 375, 376 and 377 and held –“From perusal of Section 375, 376 and 377 IPC it is quite vivid that in view of amended definition of Section 375 IPC, offence under Section 377 IPC between husband and wife has no place and, as such rape cannot be made out.”By stressing Exception 2 to Section 375, the Court held that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape and therefore, if any unnatural sex as defined under section 377 is committed by the husband with his major wife, then it cannot also be treated as an offence.“Thus, it is quite clear that at the same time, as per the definition of Section 375 of IPC, the offender is classified as a 'man'. Here in the present case, the appellant is a 'husband' and victim is a 'woman' and here she is a 'wife' and parts of the body which are used for carnal intercourse are also common, therefore, the offence between husband and wife cannot be made out under Section 375 IPC,” it added.Consequently, it held that if the age of wife is not less than 15 years, then 'any sexual intercourse' or sexual act by the husband cannot be termed as rape under any circumstance and as such absence of consent of wife for unnatural act loses significance. Therefore, it conclusively held that the offences under Section 376 and 377 of the IPC against the appellant were not made out.It is important to note that the Supreme Court in the landmark case of Independent Thought v. Union of India & Anr. (2017) had struck down Exception 2 to Section 375 of the IPC in so far as it immunized a husband from prosecution for sexual intercourse or sexual acts with his own wife who was between the age of 15 and 18. It had held that the provision was arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution, apart from being inconsistent with the provisions of POCSO, which must prevail. Accordingly, it had increased the age threshold provided under the aforesaid provision and read down the Exception 2 to Section 375 of IPC as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.” By holding that any sexual intercourse, including unnatural sex, by the husband with his wife not below the age of 15...

S. 377 IPC | 'Unnatural' Sex By Husband With Wife Without Her Consent Is Not An Offence: Chhattisgarh High Court

Jyoti Prakash Dutta

"Sexual act by the husband with her wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance," the Court said.

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