The Madhya Pradesh High Court has ruled that forced unnatural sex by a husband on his wife amounts to cruelty under Section 498A of the Indian Penal Code (IPC) but cannot be prosecuted as rape under Section 376 or as an unnatural offence under Section 377 IPC. The court cited the marital exception under Section 375 IPC and the “repugnancy” between Section 375 and Section 377 regarding acts between a husband and wife. Consequently, the Court quashed the FIR and charge sheet against a husband for offences under Sections 376(2)(n) and 377 IPC while maintaining the charges for cruelty and other offences.
Background of the Case
The petitioner (husband) and respondent no. 2 (wife) were married on June 26, 2022. Disputes arose shortly after the marriage, with allegations of quarrels and violence. The prosecution alleged that on March 1, 2023, during a visit to Indore, the petitioner assaulted the wife and “smashed the head of the respondent no.2 on the wall” after a dispute. It was further alleged that the petitioner “used to forcefully make physical relation with respondent no.2 & has also against her will, committed unnatural acts on many occasions against her.”
Following a subsequent incident on August 28, 2023, where the wife was allegedly abused and assaulted, she lodged an FIR on October 1, 2023, at Police Station Kotwali, District Morena. The FIR was registered for offences punishable under Sections 498A (Cruelty), 376(2)(n) (Repeated Rape), 377 (Unnatural Offences), 323 (Voluntarily causing hurt), and 294 (Obscene acts) of the IPC. The Judicial Magistrate First Class (JMFC), Morena, took cognizance of the offences on November 25, 2023.
The petitioner approached the High Court under Section 482 of the Criminal Procedure Code (Cr.P.C.) seeking to quash the charge sheet and the proceedings.
Arguments of the Parties
The counsel for the petitioner argued that the allegations were a “counterblast” to a divorce petition filed by the husband on September 6, 2023. It was submitted that the wife lodged the FIR on October 1, 2023, only after refusing to accept summons in the divorce case.
Regarding the legal validity of the charges, the petitioner contended that under Exception 2 to Section 375 of the IPC, sexual acts by a man with his own wife do not constitute rape. Furthermore, referencing the Supreme Court judgment in Navtej Singh Johar, it was argued that Section 377 IPC is not attracted in cases of consensual acts, and given the marital exception in Section 375, unnatural offences between husband and wife cannot be prosecuted. The counsel also highlighted that the medical examination of the prosecutrix “indicates nothing in respect of unnatural sex & no definite opinion was given by examining Doctor.”
The counsel for the State and the respondent wife opposed the petition, praying for its rejection.
Court’s Analysis
Justice Rajesh Kumar Gupta analyzed the interplay between Section 375 (Rape) and Section 377 (Unnatural Offences) in the context of marriage.
On Marital Rape (Section 376 IPC): The Court referred to Exception 2 of Section 375 IPC, which states that sexual intercourse by a man with his own wife, the wife not being under 15 years of age (read as 18 years per judicial precedents), is not rape. Citing the Supreme Court’s recent decision in Kuldeep Singh v. The State of Punjab & Ors. (2025 INSC 130), the Court observed:
“Sexual intercourse by a man with his own wife, where the wife is a major and there is no force/coercion, falls within Exception 2 of Section 375 IPC; hence, a charge under Section 376 IPC cannot be sustained.”
On Unnatural Offences (Section 377 IPC): The Court examined whether a husband can be prosecuted under Section 377 for acts committed with his wife. The Court noted a “repugnancy” between the amended definition of rape under Section 375 and the offence under Section 377.
“The offence between husband and wife is not made out under Section 375 as per the repeal made by way of amendment and there is repugnancy in the situation when everything is repealed under Section 375 then how offence under Section 377 would be attracted if it is committed between husband and wife.”
The Court further held:
“But, this Court is also of the opinion that forced unnatural sex by a husband on his wife amounts to cruelty under Section 498A IPC, but cannot be prosecuted as rape under Section 376 IPC as in a Section 377 context (unnatural acts), the marital rape concept is not recognized under current law because of the Express marital exception in Section 375.”
On Malicious Prosecution: Applying the guidelines from State of Haryana v. Bhajan Lal, the Court noted that the trial for Section 377 had commenced “only on the oral submissions” without supporting medical evidence. The Court observed that the FIR appeared to be a “matter of counterblast to divorce” and that the medical report showed “no injury signs were visible or detected” regarding unnatural sex.
Decision
The High Court partly allowed the petition. It quashed the FIR and consequential proceedings in relation to the offences under Sections 376(2)(n) and 377 of the IPC.
However, the Court maintained the proceedings for the offences under Sections 498A, 323, and 294 of the IPC, stating that the prosecution had established its case regarding these offences and their validity must be proved during the trial.
