'Marital Rape No Offence If Wife Is 18 Or Above': Allahabad HC Endorses MP HC's View That Husband Not Liable U/S 377 IPC For Unnatural Sex

In its order, the bench of Justice Ram Manohar Narayan Mishra also noted that in the proposed Bhartiya Nyay Sanhita (which is likely to replace the Indian Penal Code), there is no provision like Section 377 IPC.

The Court however clarified that as per the Judgment of the Supreme Court in the Independent Thought vs. Union of India (2017), any sexual intercourse between a man and his wife aged between 15 to 18 years would amount to rape.

While making these observations, the Court also endorsed a view taken by the Madhya Pradesh High Court recently 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.

Read more about the MP High 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

The occasion to make these observations by the Court arose while acquitting one Sanjeev Gupta (accused-husband) of charge under section 377 IPC. The Court, however, affirmed his conviction and sentence for charges under section 498-A, 323 IPC as recorded by the trial court.

The case in brief

The factual background of the case can be succinctly summarized as follows: In August 2013, the prosecutrix, who is also the wife of the accused as well as the informant, filed a First Information Report (FIR) against her husband invoking sections 498-A, 323, 504, 377 of the Indian Penal Code (IPC), and section ¾ of the Dowry Prohibition Act.

The crux of her allegations was that their marriage, which took place in July 2012, was marred by cruelty perpetrated by her husband. The complainant further asserted that the accused demanded a Fortuner car and Rs. 40 lakhs in cash, pressuring her to obtain a dowry from her parents.

The husband allegedly subjected her to verbal abuse, physical violence, and coercion, including acts of sodomy.

The FIR specifically claimed that the accused engaged in unnatural intercourse, resulting in harm to the prosecutrix's private parts.

Finally, on August 9, 2013, the accused purportedly entered the prosecutrix's paternal residence, forcibly dragged her into a room, verbally abused her, and compelled her into engaging in unnatural physical relations against her will, she lodged the instant FIR.

Contrastingly, the accused, filing the instant revision plea against his conviction, submitted before the HC that the FIR in question is fraught with baseless accusations and the same was filed at the instigation of the prosecutrix and her family members.

The accused vehemently denied engaging in any physical relationship with the revisionist post-marriage and he maintained that it was the second marriage of the prosecutrix and she cohabited with him for a brief period after their marriage, but subsequently chose to separate from him.

It was also his contention that she relocated to her parental residence on August 14, 2012, a mere one and a half months after the marital union, effectively terminating her association with him.

However, following a trial, the Trial court convicted him under the aforesaid sections and in appeal, the appellate court also upheld the finding that engaging in unnatural sexual acts such as sodomy and oral sex with one's spouse constituted marital misconduct and represented an act of cruelty perpetrated by the husband against the wife.

The court affirmed the established evidence, including instances of physical abuse on the first night of marriage and the commission of sodomy and oral sex by the accused against the prosecutrix. Consequently, his conviction under sections 323, 498-A, and 377 of the IPC was upheld.

Challenging the appellate court's findings and the conviction recorded by the trial court, the Accused moved to the High Court with the instant revision plea.

High Court's observations

At the outset, the Court noted that in a revision plea, the Court has to only satisfy itself about the legality and propriety of the findings, sentence and order and that it should refrain from substituting its conclusion on an elaborate consideration of the evidence.

Against this backdrop, the Court noted that there was no factual or legal error in the finding of guilt recorded by the appellate court as regards charge under section 323, 498-A IPC, however, regarding the conviction under Section 377 IPC, the Court opined that marital rape has not been criminalized in this country as yet.

However, the Court did note that certain petitions are pending for consideration before the Supreme Court seeking criminalizing marital rape, but till any decision comes on those petitions, the court added, there is no criminal penalty for marital rape when the wife is of or above 18 years of age.

Furthermore, besides noting that the medical evidence in the case was not supportive of allegations of commission of unnatural sex, the Court underscored that in the proposed Bhartiya Nyay Sanhita, which is likely to replace IPC, no provision like Section 377 IPC is included.

Regarding the charge of committing matrimonial cruelty, the Court noted that the allegations were proved in this case and the same was corroborated by the findings of the family court while decreeing the divorce petition.

Based on the foregoing discussion, the totality of facts and circumstances of the case, evidence on record and the judgement of the Madhya Pradesh High Court, the Court concluded that the revisionist was liable to be acquitted of the charge under section 377 IPC.

However, his conviction and sentence for the charge under section 498-A, 323 IPC as recorded by the courts below was affirmed. With this, the instant revision was partly allowed.

Citation: 2023 LiveLaw (AB) 480