Delhi HC: Section 377 does not apply to marital sex
The Delhi high court has held that unnatural sexual intercourse by a husband with his wife is not a punishable offence under Section 377 of the Indian Penal Code (IPC).
Justice Swarana Kanta Sharma, in an order released on Monday, quashed charges framed against a man under Section 377, observing that the provision cannot be invoked in the context of a legally valid marriage, where consent is presumed under Exception 2 to Section 375 IPC.
The case originated from a 2023 FIR lodged by the wife, who alleged that during their honeymoon, her husband engaged in oral sex with her without consent. She further alleged that when she confronted his family about his purported impotence, she was physically assaulted by her in-laws. Based on her complaint, Delhi Police booked the husband under sections 354, 354B, 376, 377 and 323 of the IPC.
The husband moved the high court seeking to set aside the city court's February 2023 order framing charges under Section 377. He contended that within a marriage, there exists an implied presumption of consent for sexual acts, and that the nature of the act alone does not constitute an offence under Section 377.
Section 377 of the IPC, which penalises acts of non-consensual unnatural sex between two adults, earlier prescribed a punishment of life imprisonment or ten years in jail for voluntarily engaging in 'carnal intercourse against the order of nature with any man, woman, or animal'.
It was partially read down by the Supreme Court in Navtej Singh Johar v. Union of India (2018), decriminalising consensual sexual acts between same-sex adults. However, its application within heterosexual marriages remained legally ambiguous.
Referring to this ambiguity, Justice Sharma noted: 'There is no basis to assume that a husband would not be protected from prosecution under Section 377 IPC, in view of Exception 2 to Section 375 IPC, since the law now presumes implied consent for sexual intercourse as well as sexual acts (including anal or oral intercourse within a marital relationship).'
She further clarified: 'Therefore, in the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife.'
The order underscored that following the Criminal Law (Amendment) Act, 2013, acts such as oral and anal sex — earlier falling solely under Section 377 — have been incorporated into the expanded definition of rape under Section 375. However, Exception 2 continues to exclude marital rape from prosecution unless the wife is under 15 years of age.
'This creates a legal presumption that a wife's consent to sexual intercourse is implied by virtue of marriage. In effect, as on date, the law does not recognise the concept of marital rape,' the judge said.
The woman, the court noted, had not specifically alleged that the oral sex was non-consensual. 'Importantly, the complainant has not specifically alleged that the act of oral sex was performed against her will or without her consent. What is conspicuously absent is any allegation that the act complained of was non-consensual or performed under duress,' the order stated.
While the prosecution, represented by Additional Public Prosecutor Raj Kumar, argued that the trial court rightly framed charges and that the question of consent should be determined during trial, the High Court disagreed, holding that the threshold for framing a charge under Section 377 had not been met in this case.
In its 19-page verdict, the court set aside the charge under Section 377 IPC while leaving the other charges untouched.
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