The Delhi High Court recently held that Section 377 of the Indian Penal Code (IPC) criminalising unnatural sexual offences cannot be invoked to punish a husband for anal or oral sex with his wife. .Justice Swarana Kanta Sharma said a husband is protected from Section 377 prosecution since the law presumes a wife's implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse, within a marital relationship."Thus, in the considered opinion of this Court, there is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of Exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts (including anal or oral intercourse within a marital relationship)," the Court said. Therefore, in the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife, the single-judge made it clear. "Such an interpretation would be in line with the reasoning and observations of the Hon‘ble Supreme Court in Navtej Singh Johar (judgment)," the Court said. .The Bench came to this conclusion while setting aside an order of the trial court framing charges under Section 377 of the IPC against a man. His wife had complained that while the man failed to consummate the marriage despite several attempts, he had oral sex with her on their honeymoon. She also levelled allegations of rape against her father-in-law and assault against brother-in-law. While the trial court discharged all the other accused persons, it held that a prima facie case under Section 377 was made out against the husband. .However, the High Court differed with the trial court's conclusion. It reasoned that the woman never specifically alleged that the husband established an oral sexual relationship with her without her consent. Therefore, charges could not be framed against her husband because consensual oral or anal intercourse between any two adults, in private, is not a criminal offence "It is pertinent to note that the complainant and the petitioner herein are legally wedded to each other, and the allegations arise from a matrimonial dispute. Importantly, the complainant has not specifically alleged that the act of oral sex was performed against her will or without her consent," the Court said.It further held that allegations made by the woman are vague and the evidence fails to establish the elements of the alleged offence. "In light of the above, and considering the material placed on record, this Court is of the considered opinion that no prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside," the Bench ordered. .Advocates Mohd Mustafa, Ratnesh Tiwari, Arpita Biswas and Maroof appeared for the petitioner.Additional Public Prosecutor Rajkumar appeared for the State..[Read Order]
The Delhi High Court recently held that Section 377 of the Indian Penal Code (IPC) criminalising unnatural sexual offences cannot be invoked to punish a husband for anal or oral sex with his wife. .Justice Swarana Kanta Sharma said a husband is protected from Section 377 prosecution since the law presumes a wife's implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse, within a marital relationship."Thus, in the considered opinion of this Court, there is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of Exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts (including anal or oral intercourse within a marital relationship)," the Court said. Therefore, in the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife, the single-judge made it clear. "Such an interpretation would be in line with the reasoning and observations of the Hon‘ble Supreme Court in Navtej Singh Johar (judgment)," the Court said. .The Bench came to this conclusion while setting aside an order of the trial court framing charges under Section 377 of the IPC against a man. His wife had complained that while the man failed to consummate the marriage despite several attempts, he had oral sex with her on their honeymoon. She also levelled allegations of rape against her father-in-law and assault against brother-in-law. While the trial court discharged all the other accused persons, it held that a prima facie case under Section 377 was made out against the husband. .However, the High Court differed with the trial court's conclusion. It reasoned that the woman never specifically alleged that the husband established an oral sexual relationship with her without her consent. Therefore, charges could not be framed against her husband because consensual oral or anal intercourse between any two adults, in private, is not a criminal offence "It is pertinent to note that the complainant and the petitioner herein are legally wedded to each other, and the allegations arise from a matrimonial dispute. Importantly, the complainant has not specifically alleged that the act of oral sex was performed against her will or without her consent," the Court said.It further held that allegations made by the woman are vague and the evidence fails to establish the elements of the alleged offence. "In light of the above, and considering the material placed on record, this Court is of the considered opinion that no prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside," the Bench ordered. .Advocates Mohd Mustafa, Ratnesh Tiwari, Arpita Biswas and Maroof appeared for the petitioner.Additional Public Prosecutor Rajkumar appeared for the State..[Read Order]
