Act Of Unnatural Sex By Husband With His Wife During Subsistence Of Marriage Not An Offence, Consent Immaterial: Madhya Pradesh High Court

Madhya Pradesh High Court has recently held that consent becomes immaterial when the husband indulges in an unnatural act of sex with his wife during the subsistence of marriage, and the same cannot come within the purview of rape as mentioned in Section 375 of the Indian Penal Code. Since it won't be rape under Section 375 IPC, the offence under Section 377 IPC will not be attracted either, the court further held.

The single-judge bench of Justice Prem Narayan Singh observed that the alleged unnatural act, i.e., the insertion of a penis in the mouth of a woman, comes within the ambit of rape as defined in Section 375. However, any sexual act between the husband and wife when they are residing together during the subsistence of marriage, even in the absence of consent, cannot be brought under the scope of Section 375 IPC, the bench sitting at Indore clarified.

“…in the case at hand since the respondent no.2/wife was residing with her husband during the subsistence of their marriage and as per amended definition of "rape" under Section 375 of IPC by which insertion of penis in the mouth of a woman has also been included in the definition of "rape" and any sexual intercourse or act, by the husband with his wife not below the age of fifteen years is not a rape, therefore, consent is immaterial…”, the court concluded that the allegations mentioned in the FIR would not constitute an offence under Section 377 IPC for the same reason.

Before answering the question, the court initially noted that several acts of unnatural sex had been made a part of the definition of 'rape' after the amendment in 2013, as it can be deduced from Sections 375(a), (b), (c) & (d) of IPC. It would include the act of a person who penetrates his penis into the mouth, urethra or anus of a woman, the court observed. The exception to Section 375 IPC states that any sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Since marital rape has not been recognised by the law so far, the offence that would normally constitute Section 377 IPC, if it occurred between the husband and his wife, cannot be equated to the offence of rape under Section 375 IPC, the court inferred from the precedents in Navtej Singh Johar & Ors. v. Union of India through Secretary, Ministry of Law and Justice, (2018) 10 SCC and Umang Singhar vs. State of M.P. & Anr (2023). Absence of consent of the wife for any sexual act, be it an unnatural act under Section 377, loses its importance in this context, the court deciphered.

After analysing the above legal provisions and precedents, the court was of the opinion that the wife residing along with her husband during the subsistence of marriage cannot claim that the sexual act was committed without her consent.

The current petition was preferred by the husband and his relatives for quashing the FIR for offences under Sections 377, 498-A, 294, and 506 of IPC based on a complaint filed by the wife. After quashing the proceedings for the offence under Section 377 IPC, the court also remarked that the charge under Section 294 IPC will not hold. No obscene act was committed in any public place, and the incidents alleged in the complaint occurred within the premises of the house, the single judge bench added.

The charge under Section 506 IPC was also found to be prima facie insufficient since there was only a vague allegation about a threat to kill the complainant.

“…Be that as it may, the allegations are omnibus in nature and not containing any date, time and place. The respondent no.2 had never stated that she was frightened by said threatening; hence, offence under Section 506 of IPC is also not made out”, the court added.

With regard to the charge under Section 498-A IPC, the court opined that the allegations made in the FIR, the statement of witnesses under Section 161 Cr.P.C and the complainant's statement under Sections 164 Cr.P.C are specific and duly supported by the documentary evidence. Hence, the court refused to quash the said offence alone in the FIR based on prima facie evidence.

For Petitioner: Advocates Sitwat Nabi and Yash Vyas

For Respondent State: Govt. Advocate H.S. Rathore

For Respondent/Complainant: Advocate Subodh Choudhary

Case No: Misc. Criminal Case No. 40044 Of 2023

Citation:  2024 LiveLaw (MP) 109

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