The Madhya Pradesh High Court held that an unnatural sex by a husband with his legally wedded wife cannot be an offence under Section 377 of the Indian Penal Code (IPC).

The Court held thus in a miscellaneous criminal case in which an application was filed by a man under Section 482 of the Criminal Procedure Code (CrPC).

A Single Bench of Justice Gurpal Singh Ahluwalia remarked, “… this Court is of 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 Section 377 of IPC, no further deliberations are required as to whether FIR was lodged on the basis of frivolous allegations or not.”

The Bench observed that 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.

Advocate Sajidulla Khan represented the applicant while Panel Lawyer Dilip Parihar represented the respondents.

Brief Facts -

The wife of the applicant i.e., the respondent had lodged an FIR against him in 2022 for the offence under Sections 377 and 506 of the IPC. It was alleged by her that she got married to him in 2019 and they were not blessed with any child. She was being harassed by her in-laws physically and mentally on account of non-fulfillment of dowry demand and hence, she was residing in her father’s house. As per her, when she went to her matrimonial house for the second time, then in the at night of June 2019, her husband committed unnatural sex with her.

The wife alleged that thereafter on multiple occasions, the husband committed unnatural sexual intercourse with her and also extended a threat that in case if information in this regard was given to anybody, then he would divorce her. She tolerated the same for a long time and when she was crying after remembering the old memories, her mother asked about the same. On the query raised by her mother, she informed her about the unnatural sex committed by her husband and therefore, the FIR was lodged. Challenging the said FIR, the husband approached the High Court.

The High Court after hearing the contentions of the counsel noted, “… 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 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 further noted that the consent of both the parties is necessary for taking the act out of the purview of Section 377 of IPC and 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.

“Marital rape has not been recognized so far. … Under these circumstances, this Court is of considered opinion that the allegations made in the FIR would not make out an offence under Section 377 of IPC. My view is fortified by a judgment passed by Co-ordinate Bench of this Court in the case of Umang Singhar Vs. State of Madhya Pradesh, Through Station House Officer and Another reported in 2023 SCC OnLine MP 3221”, it held.

The Court also said that even if the entire allegations made by the wife against the applicant are considered on their face value, still no offence under Section 377 of IPC would be made out.

Accordingly, the High Court allowed the application and quashed the FIR against the husband.

Cause Title- ABC v. State of Madhya Pradesh & Anr.


Applicant: Advocate Sajidulla Khan

Respondents: Panel Lawyer Dilip Parihar and Advocate Umesh Vaidh.

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