Husband Can't Be Held Guilty U/S 377 IPC For 'Unnatural Sex' With Wife: Uttarakhand High Court

“Exception 2 to Section 375 IPC cannot be taken out from it while reading Section 377 IPC in relation to husband and wife. If an act between husband and wife is not punishable due to operation of Exception 2 to Section 375 IPC, the same act may not be an offence under Section 377 IPC,” a bench of Justice Ravindra Maithani observed.

For context, Exception 2 to Section 375 IPC decriminalises rape by a husband on his wife. It states 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”.

Relying upon the Supreme Court's decision in the case of Navtej Singh Johar and others vs Union of India (2018), the High Court concluded that what is not an offence under Section 375 IPC cannot be an offence under Section 377 IPC (two consenting adults for acts in private, as specified under Section 375 IPC)

The Court made these observations while modifying an order of the Additional Sessions Judge/Special Judge (POCSO) Haridwar summoning a husband to face charges under Section 377 IPC (for allegedly committing unnatural sex with his wife) as well as Section 11/12 POCSO Act (for allegedly sexually harassing his son).

While the court upheld the summoning of the petitioner vis-à-vis offence under Section 11/12 POCSO Act, the Court set aside the order so far as it summoned him to face charges under Section 377 IPC.

To read about the court's observation regarding offence under Section 11/12 POCSO Act, refer to this report: POCSO Act | Showing Private Parts, Dirty Movies To A Child Is Prima Facie 'Sexual Harassment': Uttarakhand High Court

The case in brief

Essentially, the case against the man was lodged by his wife (respondent no. 2), who got married in December 2010, claiming that her husband engaged in repeated acts of anal intercourse with the respondent against her will, causing her severe injuries and bleeding, requiring medical attention at multiple hospitals.

Despite her injuries, the petitioner continued his actions, including physical assaults and forced sexual acts.

Significantly, she also alleged that the petitioner (husband) subjected their child, aged 8 to 10 months, to inappropriate behaviour by showing explicit content on his laptop so that respondent no.2 (wife) could succumb to his demands concerning anal sex or forceful oral sex.

It was also alleged in the FIR that he would behave very weirdly, throw things in the house, urinate in front of the room, show his private part to the young child and have oral sex forcibly in front of the child.

In the FIR, the wife also alleged that her husband-petitioner made her suffer physically as she was regularly beaten up, and he continued anal sex with respondent no.2, due to which she again sustained injuries.

After an investigation, a chargesheet was submitted against the petitioner. On April 8, 2019, cognizance was taken by the court.

Arguments made before the Court

Challenging the FIR as well as the summoning order, the petitioner moved to the High Court, wherein his counsel primarily made the following arguments:

• Rape has been defined under Section 375 IPC. The amended definition of rape includes the act, which is otherwise an offence under Section 377 IPC. But, being a husband, the petitioner cannot be made liable for it given Exception 2 to Section 375 IPC

• In the case of a married couple, the consent of sex is informed, and it is not required on each occasion. Therefore, an offence under Section 377 IPC is not made against the petitioner, who happens to be a husband.

• Whatever act had been attributed to attracting the provisions of Section 11 to the POCSO Act, they were committed to pressure respondent no.2 (wife) to follow the petitioner's commands. Hence, the petitioner's intention was not sexual towards the child of the parties.

On the other hand, the Counsel for the wife submitted that there cannot be informed consent at the time of marriage for unnatural sex; no wife would consent for it.

It was also argued that Section 377 IPC is an independent provision providing punishment for a distinct offence and does not make any exception in favour of a husband. Lastly, it was also argued that under Section 13(2)(ii) of the Hindu Marriage Act, 1955, sodomy would be a ground for divorce.

High Court's observations

The Court, having considered the submissions of the counsel for the petitioner, at the outset, referred to the Madhya Pradesh High Court's Judgment in the case of Umang Singhar vs. State of Madhya Pradesh wherein it was held 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 that offence of Section 377 IPC would be attracted where husband and wife are involved in sexual acts.

The court also referred to the Allahabad High Court's judgment in the case of Sanjeev Gupta vs. State of U.P. and another 2023 LiveLaw (AB) 480 wherein it was held that protection of a person from marital rape continues in cases where his wife is of 18 years of age or more than that.

Against this backdrop, the Court held that if an act between the husband and wife is not punishable under Section 375 IPC due to the operation of Exception 2 to it, the same act may not be an offence under Section 377 IPC.

“In the instant case, according to the prosecution the petitioner has committed anal sex with the respondent no.2 on multiple occasions. The petitioner 34 is husband of the respondent no.2. The act alleged also falls within Section 375 IPC and by operation of Exception 2 to it, a husband cannot be held guilty under Section 375 IPC for such an act. In such a situation the provisions of Section 377 IPC cannot be invoked against the husband” the Court observed as it opined that Section 377 IPC was not prima facie made out against the petitioner.

Regarding the applicability of Sections 11 and 12 of the POCSO Act 2012 against the petitioner, the Court said that the offences would be attracted as showing private parts and dirty movies to a child would prima facie amount to 'Sexual Harassment' punishable under section 12 of the 2012 Act.

In view of this, the Court modified the summoning order to hold that the revisionist's trial shall proceed under Section 11 read with Section 12 of the POCSO Act, but no trial would be conducted for the offence under Section 377 IPC.

Case title - Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another

Case citation : 2024 LiveLaw (UTT) 20

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