Unnatural Sex By Husband With Wife Without Consent Not An Offence Under Section 377 IPC: Chhattisgarh HC
"If any unnatural sex as defined under section 377 is committed by the husband with his wife, then it can also not be treated to be an offence," the Court observed.
The Chhattisgarh High Court has held that non-consensual anal sex or any other non-consensual sexual act committed by a husband on his major wife does not constitute an offence under Section 375 or Section 377 of the Indian Penal Code (IPC).
The Court ruled that marital rape is not recognized under Indian law, citing Exception 2 to Section 375, which states that sexual intercourse or acts by a man with his wife are not rape, provided the wife is not below 15 years of age.
The Single Bench of Justice Narendra Kumar Vyas, while delivering the judgment, observed, "If any unnatural sex as defined under Section 377 is committed by the husband with his wife, then it can also not be treated to be an offence."
Advocate Raj Kumar Pali appeared for the Appellant, and Advocate Pramod Shrivastava (Dy. GA) appeared for the Respondent-State.
Background of the Case
The case involved accused, who was convicted for rape (Section 375 IPC), unnatural offence (Section 377 IPC), and causing death by negligence (Section 304 IPC) after allegedly inserting his hand into his wife's rectum, which later resulted in her death.
The deceased had recorded a dying declaration, stating that she had fallen ill due to an unnatural sexual act committed by her husband. However, some witnesses turned hostile, and the Executive Magistrate who recorded the dying declaration testified that the deceased had spoken about the incident but it was not included in the official statement.
Despite this, the trial court convicted Sharma and sentenced him to 10 years in prison based on the dying declaration. Sharma subsequently challenged his conviction before the High Court.
Court Order
The High Court examined the scope of Sections 375 and 377 IPC and ruled that:
1. Exception 2 to Section 375 IPC specifically excludes sexual intercourse between a husband and wife from the definition of rape, even in the absence of consent.
2. Since rape under Section 375 includes penetration of the penis into the vagina, urethra, or anus, and such acts between a husband and wife do not amount to rape, they also cannot be classified as an unnatural offence under Section 377.
3. The dying declaration lacked corroborative evidence, making it insufficient to convict the accused.
4. The conviction under Section 304 IPC was also deemed perverse and illegal, as the trial court failed to establish how the offence was attracted in this case.
The Bench said, "It is quite vivid, that if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with her wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance, therefore, this Court is of the considered opinion that the offence under Section 376 and 377 of the IPC against the appellant is not made out."
Based on these findings, the Court acquitted Sharma of all charges. "Accordingly, the appeal is allowed. The accused is acquitted of the charges levelled against him under Section 376, 377 and 304 of the IPC. It is reported that the appellant is in jail, he be released forthwith, if not required in any other case. It is made clear that fine amount, if any deposited by refunded to the appellant," the Court ordered.
Cause List: Gorakhnth Sharma v. State of Chhattisgarh [Neutral Citation No. 2025:CGHC:7365]
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