Can't Prosecute A Husband U/S 377 IPC As S. 375 IPC Exempting Marital Sex Covers All Possible Penile Penetration: MP High Court

The Court 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 that offence of Section 377 IPC would be 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 Section 375 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 can not be made out in such cases.

"as per the definition of Section 375, the offender is classified as a ‘man’. here in the present case 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. The offence between husband and wife is not made out under Section 375 as per the repeal made by way of amendment and there is repugnancy in the situation when everything is repealed under Section 375 then how offence under Section 377 would be attracted if it is committed between husband and wife," the Court observed.

In other words, the Court reasoned that in a given case of 'rape', if the 'offender' and victim are husband and wife, then consent is immaterial and hence, no offence under Section 375 is made out and as such the husband won't be liable for any punishment under Section 376 of IPC.

The Court further clarified that the act (including all possible parts of penetration of the penis by a husband vis-a-vis his wife) as per the definition of Section 375 is not an offence, then the same can also not be treated as an offence under Section 377 IPC. 

In this regard, the Court opined that there is repugnancy in these two situations in light of the definition of Section 375 and the unnatural offence of Section 377.

Importantly, the Court also stressed 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.

Against this backdrop, the Court further opined that no barrier can be put in the alpha and omega of a sexual relationship between the husband and his wife and therefore, it held that in view of the amended definition of Section 375, the offence of 377 between husband and wife has no place and as such it is not made out.