Unnatural Sex By A Man With Wife Not Rape, Absence Of Woman's Consent Immaterial: MP High Court

Noting that 'Marital rape' has not been recognised as an offence in India, the Madhya Pradesh High Court has observed that any sexual intercourse, including unnatural sex by a man with a wife, won't amount to rape as the consent of the wife becomes immaterial in such cases. A bench of Justice Gurpal Singh Ahluwalia held that if a wife is residing with her husband during the subsistence of a valid marriage, then any sexual intercourse or sexual act by a man with his own wife not below the age of fifteen years will not be rape. "...insertion of penis in the anus of a woman has also been included in the definition of 'rape' and any sexual intercourse or sexual act by the husband with her wife not below the age of fifteen years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance", remarked single judge. The Court, however, added that the only exception to this position of law is Section 376-B of IPC, where the sexual act with his own wife during the separate living on account of judicial separation or otherwise would be rape. Referring to Exception 2 of Section 375, the Court noted that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, will not amount to rape. The Court made these observations while quashing an FIR lodged against one Manish Sahu by his wife alleging, inter alia, a commission of unnatural offence as per Section 377 of IPC.Importantly, as per Section 375 of the Indian Penal Code (IPC), rape includes all forms of sexual assault involving non-consensual intercourse with a woman. However, as per Exception 2 to Section 375 IPC, sexual intercourse between a husband and a wife aged over 15 years of age does not constitute “rape” and thus prevents such acts from prosecution. It may be noted that in October 2017, the Supreme Court, in Independent Thought vs. Union of India (2017) judgment, read '15 years' in Exception 2 to Section 375 as '18 years' to bring sex with a minor wife within the ambit of the rape offence. The case in brief The wife/respondent No.2 lodged the FIR against her husband that after her marriage, when she went to her matrimonial house for the second time, then on the intervening night of June 06, 2019, and June 07, 2019, her husband/applicant committed unnatural sex with her and thereafter on multiple occasions, he committed unnatural sexual intercourse with her. Challenging the FIR lodged by the wife, the applicant-husband moved the High Court that the applicant and respondent No.2 are husband and wife and hence, any unnatural sex between them is not an offence under Section 377 of IPC. High Court's observations At the outset, examining Section 375(a) of IPC (as amended by the 2013 Amendment Act), the Court noted that if a person penetrates his penis into the mouth, urethra or anus of a woman, he would be guilty of committing rape. However, referring to Exception 2 of Section 375, the Court noted that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, will not amount to rape. “…after considering the amended definition of "rape" as defined under Section 375 of IPC has already come to a conclusion that if a wife is residing with her husband during the subsistence of a valid marriage, then any sexual intercourse or sexual act by a man with his own wife not below the age of fifteen years will not be rape,” the Court held.In this regard, the Court also endorsed a view taken by the Madhya Pradesh High Court last year wherein it stated after the 2013 amendment to the definition of Section 375 IPC (Rape), there is no place for any unnatural offence (as per Section 377 IPC) to take place between a husband and wife.In its order, the MP High Court had 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 (given marital rape exception), then there is no scope for the offence of Section 377 IPC to get attracted where husband and wife are involved in sexual acts. Consequently, having concluded that the act of unnatural sex by a husband with his legally wedded wife residing with him is not an offence under Section 377 of IPC, the Court allowed the plea by quashing the FIR lodged against the husband. Case Citation: 2024 LiveLaw (MP) 89 Click here to read/download order

Unnatural Sex By A Man With Wife Not Rape, Absence Of Woman's Consent Immaterial: MP High Court

Sparsh Upadhyay

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