Unnatural Sex With Wife Against Her Will Amount To Cruelty U/s. 498A IPC: Madhya Pradesh High Court
The Madhya Pradesh High Court was considering an Application seeking quashing of FIR for offence under Sections 377, 323 and 498A of the IPC.
The Madhya Pradesh High Court has held that committing unnatural sex on wife against her will and assaulting her physically upon resistance amounts to cruelty under Section 498A IPC.
The Court was considering an Application seeking quashing of FIR for offences under Sections 377, 323 and 498A of the IPC.
The bench of Justice Gurpal Singh Ahluwalia observed, "Committing unnatural sex with wife against her wishes and on her resistance, assaulting and treating her with physical cruelty will certainly fall within the definition of cruelty. It is not out of place to mention here that demand of dowry is not sine qua non for cruelty."
The Applicant was represented by Advocate Jitendra Singh Kushwah, while the Respondent was represented by Public Prosecutor Mohit Shivhare.
Facts of the Case
According to prosecution's case, the Complainant lodged an FIR alleging that she got married to Applicant in 2023 in accordance with Hindu rites and rituals and ever since he was committing unnatural sex with her after consuming liquor and whenever she refused to indulge in such activity, then she was being assaulted and treated with cruelty. She involved her parents in the situation, but it didn't improve. Later, she also complained to Mahila Paramarsh Kendra on a number of occasions, which led to summoning of her husband but the situation persisted even after that.
Challenging the FIR, it was submitted by Counsel for Applicant that unnatural sex with wife is not a rape as per amended definition of rape under Section 375 of IPC. It was further submitted that when the basic allegation of committing unnatural sex is not an offence, then no offence under Section 498A of the IPC can be made out.
Reasoning By Court
The Court, at the outset, referred to the Supreme Court's decision in the case of Navtej Singh Johar and Others Vs. Union of India, Through Secretary, Ministry of Law and Justice, to reiterate that consensual sexual conduct between adults of the same sex cannot be termed as an offence under Section 377 of the IPC.
"Thus in nutshell, it can be said that if an unnatural sex takes place between two persons of either same gender or different gender with the consent of both the parties, then it would not be an offence under Section 377 of IPC," the Court observed.
It pointed out that as per the amended definition of "rape" as defined under Section 375 of IPC, it has already been concluded 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 fifteen years will not be rape.
"Therefore, in view of the amended definition of "rape" under Section 375 of IPC by which the insertion of penis in the anus of a woman has also been included in the definition of "rape" and any sexual intercourse or sexual act by the husband with her wife not below the age of fifteen years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance. Marital rape has not been recognized so far," the Court observed.
It thus concluded that it is clear that unnatural sex with a wife would not be an offence under Section 376 or 377 of the IPC. With respect to offence under Section 498A of IPC, it was held that any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health, whether mental or physical, to the woman, would amount to cruelty under Section 498A of IPC.
"Under these circumstances, this Court is of considered opinion that since there are specific allegations that whenever respondent No. 2 resisted to the unnatural conduct of applicant, then she was assaulted and was treated with physical cruelty, this Court is of considered opinion that offence under Section 498A of IPC is made out," the Court ruled.
The Application was thus partly allowed.
Cause Title: X vs. The State of Madhya Pradesh And Others (2025:MPHC-GWL:10757)
Appearances:
Applicant- Advocate Jitendra Singh Kushwah
Respondent- Public Prosecutor Mohit Shivhare, Advocate Vinod Kumar Dhakad