Latest news with #NavtejSinghJohar
Indian Express
13-06-2025
- Politics
- Indian Express
Courts accept that family goes beyond marital bonds. It's high time society did so too
When the Supreme Court of India decriminalised consensual same-sex relations in Navtej Singh Johar v. Union of India in 2018, it did more than just strike down an archaic colonial law. It recognised that queer individuals are entitled to equality, dignity and autonomy under the Constitution. During the proceedings, one of the counsels had emphatically argued, 'How strongly must we love knowing we are unconvicted felons under Section 377?' This unfettered practice of love, in the face of historical discrimination, was highlighted as a key argument for repealing Section 377 of the Indian Penal Code. Going beyond the decriminalisation of same-sex relationships, the judgment said: 'The right to love and to find a partner, to find fulfilment in a same-sex relationship is essential to a society which believes in freedom under the constitutional order based on rights.' Since Navtej, India's courts have seen a growing number of habeas corpus petitions involving queer individuals seeking protection from harassment, violence, or unlawful confinement by their natal families. The first such case was decided in 2018 in Sreeja S v. The Commissioner of Police, Thiruvananthapuram, where the Kerala High Court upheld the right of a lesbian woman to live with her partner without fear of reprisals from her family. While granting protection to such couples, courts have held that if the two parties are consenting adults, they have the right to stay with a person of their choice, irrespective of their gender identity or sexual orientation. These cases, often involving young couples fleeing social ostracisation or forced separation, reveal a simple truth: Decriminalisation is not enough. Without legal recognition of queer relationships, queer people remain vulnerable. Last month, the Madras High Court held that 'marriage is not the sole mode to found a family,' reflecting a reality long lived by queer communities which is often overlooked by the law. The Court's observation came in response to a habeas corpus petition filed by a 25-year-old woman from Tirupathur, who sought the release of her partner from unlawful detention by the partner's family. Rooted in a growing body of queer jurisprudence, the Court recognised the couple's right to form a family beyond the traditional, and arguably limiting, framework of marriage and heterosexual norms. This judgment is significant because it broadens the legal understanding of queer families, making clear that the right to family life is not limited to marriage, nor confined to heteronormative relationships. Grounded in the Supreme Court's consistent affirmation that consenting adults have the fundamental right to choose their partners, regardless of caste, as held in Lata Singh v. Union of India (2006); religion, as in Shafin Jahan v. Asokan K M (2018); or gender and sexuality, as in Navtej Singh Johar v. Union of India (2018). Crucially, in Navtej, the Court clarified that the rights of queer persons encompass a broader, affirmative recognition of their right to love, dignity, and self-determination. This reasoning was further extended in Supriyo v. Union of India (2023). In this case, although the Supreme Court stopped short of legalising same-sex marriage, it unequivocally acknowledged the 'right to form intimate associations' as a core aspect of constitutional liberty. Central to its reasoning was also the decision in Deepika Singh v. Central Administrative Tribunal (2022), which expanded the legal understanding of 'family' beyond biological or marital ties, noting that the law must adapt to reflect lived realities, thereby making space for families of choice. The Court also relied on Devu G Nair v. State of Kerala (2023), wherein the Supreme Court had laid out comprehensive guidelines for how courts and authorities should handle cases involving queer couples. As part of the directions, the SC had urged lower courts to act swiftly, avoid bias, ensure police protection where needed, and strictly prohibit attempts to alter a person's sexual orientation or gender identity through 'conversion therapy' practices. In a legal and social landscape still largely preoccupied with marriage as the benchmark of legitimacy, judgments such as these mark a radical and necessary shift. It transforms constitutional guarantees into concrete protections, especially for those abandoned by family, society, or the state. In doing so, they reinforce that queer individuals are full rights-bearing citizens, entitled not only to protection from harm but also to affirmation, autonomy, and a sense of belonging. Looking ahead, the challenge is not merely to defend these hard-won judicial victories, but to build upon them and ensure that the law does more than shield queer lives. The writer is a socio-legal scholar working on gender and sexuality rights
News18
30-05-2025
- News18
Forced Unnatural Sex With Wife Amounts To Cruelty, Rules Madhya Pradesh High Court
Last Updated: The court, however, clarified that such acts don't amount to an offence under Section 377 IPC when committed within a subsisting marriage due to the exception in the statute The Madhya Pradesh High Court at Gwalior, addressing the limits of criminal liability within marriage, has held that committing unnatural sex with one's wife without her consent, accompanied by physical assault and cruelty, constitutes an offence under Section 498A of the Indian Penal Code (IPC). However, the court clarified that such acts do not amount to an offence under Section 377 IPC when committed within a subsisting marriage, due to the exception carved out in the statute. The single bench of Justice GS Ahluwalia made the observation while hearing a case arising from proceedings under Section 482 of the Code of Criminal Procedure (CrPC), seeking quashing of an FIR registered at Police Station Sirol, District Gwalior. The FIR, lodged by the wife (Respondent No. 2), invoked Sections 377 (unnatural offences), 323 (voluntarily causing hurt), and 498A (cruelty by husband or his relatives) of the IPC. According to the complainant, she was married to the applicant on May 2, 2023, under Hindu rites. At the time of marriage, her parents allegedly gave Rs 5 lakh in cash, household items, and a Bullet motorcycle. In her FIR, the wife accused the applicant of engaging in unnatural sex acts after consuming alcohol, often resorting to violence when she resisted. She further alleged persistent cruelty and abuse, despite attempts by her family and interventions by the Mahila Paramarsh Kendra and local police. The applicant's counsel contended that since the complainant was his legally wedded wife, the allegation of unnatural sex within marriage did not constitute an offence under Section 377 IPC. The counsel further asserted that if the primary allegation under Section 377 fails, then charges under Sections 498A and 323 should also not stand. The single bench examined the statutory framework and relevant judicial precedents. Citing the Supreme Court's landmark judgment in Navtej Singh Johar v. Union of India [(2018) 10 SCC 1], the court reiterated that consensual unnatural sex between adults is no longer criminalised under Section 377 IPC. However, the distinction in the present case was the absence of consent. Despite this, the court observed that Exception 2 to Section 375 IPC; which exempts sexual intercourse by a man with his wife (not under 15 years of age) from the definition of rape, remains operative under Indian law, unless the couple is living separately under a decree of judicial separation (in which case Section 376B IPC may apply). Accordingly, the court held: '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." However, the court said that even where consent is absent, such acts within marriage are not punishable under Section 377 IPC due to the statutory exception. 'Thus the consent of both the parties is necessary for taking the act out of the purview of Section 377 of IPC," it said. Turning to the allegations under Section 498A IPC, the court emphasised that cruelty encompasses not only dowry-related abuse but also any wilful conduct that could cause grave mental or physical harm to the wife. The bench 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." The court also clarified that demand for dowry is not a prerequisite to invoke Section 498A, as cruelty under the provision is not limited to financial coercion. The court partially allowed the petition. It quashed the charge under Section 377 IPC but upheld the continuation of criminal proceedings under Sections 498A and 323 IPC. The court held, 'Accordingly, this application is partially allowed. Offence under Section 377 is hereby quashed. However, FIR in relation to offence under Section 498A and 323 of IPC is upheld." First Published:
&w=3840&q=100)
Business Standard
22-05-2025
- Business Standard
'Law doesn't recognise marital rape': HC drops sex charge against husband
The Delhi High Court has set aside a trial court order directing the framing of charges under Section 377 of the Indian Penal Code (IPC) against a man accused of performing oral sex on his wife, ruling that marital rape is not recognised under Indian law. Justice Swarana Kanta Sharma, hearing the husband's plea, observed that Section 377—which criminalises "unnatural offences"—cannot be invoked in the absence of non-consensual allegations within a marital relationship. 'There is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of Exception 2 to Section 375 of IPC,' the court said, adding that the law presumes implied consent for both sexual intercourse and sexual acts, including anal and oral intercourse, within marriage. The court noted that the wife had not specifically alleged lack of consent, and cited the Supreme Court's 2018 ruling in Navtej Singh Johar vs Union of India, which decriminalised consensual sex between adults under Section 377. The ruling reaffirmed that consent remains central to any criminal charge under the provision. 'The essential ingredient of lack of consent – central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar – is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met,' the court said. It concluded: 'No prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside.' Contradictions and legal implications The wife had also alleged that the husband was 'impotent', and that the marriage was part of a conspiracy to extort her family. In response, the husband argued that the marriage was valid and that consensual sexual acts within marriage do not attract criminal liability under Section 377. Justice Sharma noted a contradiction in the wife's statements—accusing the husband of impotence while also alleging that he performed oral sex. The court further clarified that oral or anal intercourse is now included under the expanded definition of rape in Section 375(a) IPC, but remains exempt from prosecution when committed by a husband, due to the existing marital exception. '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. Such an interpretation would be in line with the reasoning and observations of the Supreme Court in Navtej Singh Johar,' the court added.
Time of India
21-05-2025
- Time of India
'Marital rape not legal offence': HC quashes Section 377 case against husband
NEW DELHI: Noting that the law doesn't recognise the concept of marital rape , Delhi high court quashed an order regarding prosecution of a husband under Section 377 for performing "unnatural" sex with his wife. The court also observed "inherent contradictions" in the wife's statements regarding consent while highlighting the exception of "implied consent" in marriage under current rape law. The court observed that Section 377 of the IPC, which penalises certain sexual acts, would not be applicable within a marital relationship, especially in the absence of any allegation of lack of consent. "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. Such an interpretation would be in line with the reasoning and observations of the Supreme Court in Navtej Singh Johar (case)," the court said in its May 13 order. Additionally, it observed that the wife had not explicitly stated whether the act was committed against her will or without her consent. The wife alleged that the husband was "impotent" and claimed their marriage was part of a conspiracy by him and his father to establish illicit relations and extort money from her family. by Taboola by Taboola Sponsored Links Sponsored Links Promoted Links Promoted Links You May Like This Device Made My Power Bill Drop Overnight elecTrick - Save upto 80% on Power Bill Pre-Order Undo In response, the husband maintained that the marriage was legally valid and that there was an implied presumption of consent for consensual sexual acts within it, which could not attract charges under Section 377. Noting an "inherent contradiction" in the wife's statements, the judge pointed out that she simultaneously accused the man of sexual incapacity while also alleging that he had performed oral sex. "The essential ingredient of lack of consent – central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar (case) between any two adults – is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met," the court said. "No prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside," it added. The court further noted that acts like anal or oral intercourse fall within the scope of rape under Section 375(a) of the IPC, but also clarified that there was no reason to believe the petitioner would not be covered by the legal immunity granted to husbands under the exception to the rape provision. "There is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse within a marital relationship," it said.
Hindustan Times
21-05-2025
- Hindustan Times
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.
