Justice Arun Kumar Singh Deshwal, Allahabad High Court
Non-Consensual Unnatural Sex By Husband Punishable Under Section 377 IPC: Allahabad High Court
|The petitioner sought to quash criminal proceedings initiated against him for allegedly subjecting his wife to non-consensual unnatural sex.
The Allahabad High Court has held that a husband engaging in non-consensual unnatural sexual acts with his wife, even if she is above the age of 18, is liable to be prosecuted under Section 377 of the Indian Penal Code (IPC).
A petition was filed by petitioner, who sought to quash criminal proceedings initiated against him in the Prayagraj district. He was facing charges under Sections 498A (cruelty by husband), 323 (voluntarily causing hurt), 504 (intentional insult), 506 (criminal intimidation), and 377 (unnatural offences) of the IPC, along with certain provisions of the Dowry Prohibition Act. He had argued that, as the complainant was his legally wedded wife and above 18, Section 377 was inapplicable.
A Bench of Justice Arun Kumar Singh Deshwal said, “Given the above analysis, it is clear that carnal sex, other than penile-vaginal intercourse is not a natural orientation of sex for the majority of women, therefore the same cannot be done by the husband, even with his wife without her consent. Therefore, this court holds that unnatural sexual intercourse by a man with his own wife without her consent, even if she is above 18 years, would be punishable u/s 377 IPC though that may not be rape as per Section 375 IPC.”
The Court observed that although such acts may not come under the purview of rape as defined under Section 375 IPC—owing to the exception that exempts husbands from rape charges when the wife is over 18—they still constitute a punishable offence under Section 377. This section criminalizes “unnatural offences,” which includes any carnal intercourse against the order of nature.
The Court further stated that a woman retains her bodily autonomy and sexual agency even after marriage. Merely being someone's wife does not strip a woman of her fundamental right to refuse participation in acts that go against her sexual orientation or dignity. The Court added, "A wife may be above 18 years but as an individual identity she has a choice for sexual orientation that has to be protected, and merely because she is a wife of a man, her fundamental right not to give consent against the unnatural sex cannot be taken away. A woman despite being a wife also has individual right to particular sexual orientation and dignity.”
This position contrasts with an earlier ruling by the Madhya Pradesh High Court, which held that a husband could not be charged under Section 377 for unnatural sex with his wife if she is over 18, given that such conduct is no longer recognized as rape under Section 375 IPC. The Court however, disagreed with that interpretation, clarifying that the non-applicability of Section 375 does not preclude the operation of Section 377 when consent is absent.
The Court ruled that unnatural sexual acts committed without the wife's consent—even within marriage—amount to an offence under Section 377. The Court concluded, “In view of the above discussion, the submission of learned counsel for the applicant that no offence u/s 377 IPC is made out against the applicant is misconceived because the unnatural intercourse committed by the applicant upon the opposite party no.2 was against her will.”
Cause Title: Imran Khan @ Ashok Ratna v. State of Uttar Pradesh & Anr., [2025:AHC:71784]
Appearance:
Petitioner: Advocate Sharique Ahmed.
Respondents: Advocate Manish Kumar Tripathi, AGA Ramesh Kumar