Unnatural Sex Case: Husband Can’t Be Held Guilty of Rape for Having Anal Sex With Wife, Says Uttarakhand High Court

Dehradun, July 27: The Uttarakhand High Court has quashed a case of anal sex allegedly committed by a husband on his wife, stating that such acts between a husband and wife are not punishable under Section 375 (rape) of the Indian Penal Code (IPC) due to the operation of Exception 2 to Section 375. Consequently, the same act may not be considered an offence under Section 377 (unnatural sex) of the IPC.

According to Exception 2 of Section 375 IPC, sexual intercourse or acts by a man with his own wife are not considered rape if the wife is not under fifteen years of age. Therefore, if any unnatural sex as defined under Section 377 IPC is committed by the husband with his wife, it cannot be treated as an offence of rape. Unnatural Sex Case: Husband Accused of Having Unnatural and Forcible Sex With Wife Gets Bail by Supreme Court.

Justice Ravindra Maithani was hearing a plea filed by the husband challenging a trial court’s summoning order and the cognisance of a chargesheet filed against him for offences under Section 377 of IPC and provisions of the Protection of Children from Sexual Offences (POCSO) Act. HC on Unnatural Sex: Marital Consent Not Applicable in Unnatural Sex Acts Within Marriage, Says Madhya Pradesh High Court; Rules Against Rape Charges.

“In the instant case, according to the prosecution, the petitioner (husband) has committed anal sex with the respondent no.2 (wife) on multiple occasions. The petitioner is the husband of the respondent no.2. The act alleged also falls within Section 375 IPC and by operation of Exception 2 to it, a husband cannot be held guilty under Section 375 IPC for such an act. In such a situation, the provisions of Section 377 IPC cannot be invoked against the husband. Therefore, this court is of the view that Section 377 IPC is not prima facie made out against the petitioner,” the High Court said.

However, the High Court ordered that the offense against the husband under the provisions of the POCSO Act for the exhibition of private parts to a child and showing the child obscene films, as alleged by the child, prima facie makes out an offense under Section 11 read with Section 12 of the POCSO Act.

The High Court noted, “This court is of the view that the impugned summoning order requires interference to the extent that no offense under Section 377 IPC is made out against the revisionist. But, offense under Section 11 read with Section 12 of the Protection Of Children From Sexual Offences Act, 2012 is prima facie made out against the revisionist.”

According to the prosecution, the couple married in December 2010, and the husband repeatedly committed carnal intercourse against the order of nature with his wife in Germany and India, causing her serious internal injuries and bleeding. Despite being advised to undergo surgery, the husband continued anal sex with her. It was also alleged that he showed pornographic videos to their child and performed forceful oral sex with his wife in front of the child.

The wife argued that a prima facie offense is made out against her husband and no interference is warranted in the instant petition. She further argued that there cannot be informed consent at the time of marriage for unnatural sex and no wife would consent to it, and that the amendment in Section 375 IPC cannot render Section 377 IPC redundant.

The husband argued that the amended definition of rape under Section 375 IPC, effective from February 3, 2013, includes acts that would otherwise be offences under Section 377 IPC, but being a husband, he cannot be made liable for it in view of Exception 2 to Section 375 IPC.

(The above story first appeared on LatestLY on Jul 27, 2024 06:08 PM IST. For more news and updates on politics, world, sports, entertainment and lifestyle, log on to our website latestly.com).