Husband-Wife Sexual Relations Not Restricted To Procreation, Can't Define Any Act Beyond 'Natural' Sex B/w Them As ‘Unnatural’: MP High Court

Holding that a husband cannot be prosecuted under Section 377 IPC (Unnatural Offence) in view of Section 375 IPC (Rape) which exempts marital sex and also covers all possible penile penetration, the Madhya Pradesh High Court has observed that if anything is done between them apart from the deemed natural sexual intercourse, the same cannot be defined as ‘unnatural’. The bench of Justice Sanjay Dwivedi made this observation while quashing an FIR lodged against a sitting Member of the MP State Legislative Assembly by his wife alleging, inter alia, a commission of unnatural offence as per Section 377 of IPC. The Court opined that when Section 375 IPC (as amended by the 2013 Amendment Act) includes all possible parts of penetration of the penis by a husband to his wife and when consent for such an act is immaterial, then there is no scope for the offence of Section 377 IPC to get attracted where husband and wife are involved in sexual acts. In this regard, the Court, perusing the definition of ‘rape’ as per Section 375, noted that the provision includes penetration of the penis in the parts of the body i.e., vagina, urethra or anus of a woman, and since, consent is not required when the sexual act happens between husband and wife, then any unnatural offence cannot be made out in such cases.Read more about the Court's observations here: Can't Prosecute Husband U/S 377 IPC As S. 375 IPC Exempting Marital Sex Covers All Possible Penile Penetration: MP High Court Importantly, the Court also underscored that the relationship between the husband and wife cannot be confined to their sexual relationship only for the purpose of procreation, and therefore, if anything is done between them, apart from the deemed natural sexual intercourse, the same cannot be termed as ‘unnatural’. “If sexual intercourse for procreation via penile-vaginal penetrative intercourse is considered to be natural sex and sexual relations of husband and wife is confined to that extent then in case if any husband or wife is not capable of procreation, then seemingly their relationship would become useless, but it does not happen. The conjugal relationship between husband and wife includes love that has intimacy, compassion and sacrifice, although it is difficult to understand the emotions of husband and wife who share intimate bond, but sexual pleasure is an integral part of their relentless bonding with each other," the Court observed. In its order, the Court also stressed that a sexual relationship between the husband and wife is the key to a happy connubial life and the same is not restricted to the extent of sheer procreation. Further, emphasizing that no barrier can be put in the alpha and omega of a sexual relationship between the husband and his wife, the Court remarked thus: “If anything raises their longing towards each other giving them pleasure and ascends their pleasure then it is nothing uncustomary and it can also not be considered to be unnatural that too when Section 375 IPC includes all possible parts of penetration of penis by a husband to his wife.” The case in briefThe Court was essentially dealing with a quashing petition filed by a Former Madhya Pradesh minister and sitting Congress MLA who had been accused by wife of omitting unnatural sex against her. It was his contention that the allegations regarding the commission of the unnatural offence were not made out as the sexual acts were committed pursuant to a marital relation between him and his wife-victim. Considering the overall fact-situation of the case at hand, the Court found both the applicant and the victim hold political posts in the same political party and they had known each other for a long and the victim had entered into marriage with the accused and when their relationship became estranged; complaints were made by them against each other. Further, the Court also noted that after their marriage, they visited several places, and enjoyed their honeymoon, therefore, the act of the accused was not punitive for the offence punishable under Sections 376(2)(n) and Section 377 of IPC. Regarding the allegations of Dowry, the Court noted that no robust allegations were levelled regarding the demand of dowry and at the most, an offence under the Domestic Violence Act could have been registered by the victim's wife and that too immediately after the commission of such crime. Regarding other offences i.e. Sections 294 and 506 of IPC, the Court noted that no date, place and time had been disclosed and as such, the complaint was a malicious prosecution filed by the victim-wife as there was inter se dispute between the husband-wife.

Husband-Wife Sexual Relations Not Restricted To Procreation, Can't Define Any Act Beyond 'Natural' Sex B/w Them As ‘Unnatural’: MP High Court

Sparsh Upadhyay

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