Unnatural sex with wife not offence under IPC Sec 377: MP HC

OBSERVING THAT marital rape has not been recognised so far in India, the Madhya Pradesh HC ruled that unnatural sex by a husband with his legally wedded wife residing with him is not an offence under IPC Section 377.

The HC said, in view of the amended definition of rape under IPC Section 375, “absence of consent of wife for unnatural act loses its importance. Marital rape has not been recognised so far.”

J us ticegurp al sing h ah luw ali a was hearing a petition by a man who prayed that an fir filed by his wife accusing him of having unnatural sex with her be quashed. “This court is of the considered opinion that after having come to a conclusion that the act of unnatural sex by a husband with his legally wedded wife residing with him is not an offence under IPC Section 377,” said the order passed on May 1, quashing the FIR.

The couple got married in 2019. After accusing her in-laws of “physical and mental harassment for not fulfilling dowry demand”, she filed a case of cruelty and returned to her home.

She alleged that her husband had threatened her and revealed to her mother that he “had committed unnatural sex with her on multiple occasions”, following which she moved court to lodge an FIR against him.

“It is clear that a consensual sexual conduct between adults of the same sex cannot be termed as an offence under Section 377 of IPC. Thus in nutshell, it can be said if an unnatural sex takes place between two persons of same or different gender with the consent of both the parties, then it would not be an offence under IPC Section 377,” the court said.

The court said “consent of both the parties is necessary for taking the act out of the purview of IPC Section 377.”

“However, this court, after considering the amended definition of rape under IPC Section 375, has 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 15 years will not be rape,” the court said.