The Uttarakhand High Court has ruled that a husband cannot be held guilty under Section 377 of the Indian Penal Code (IPC) for engaging in ‘unnatural sex’ with his wife if the act is protected by Exception 2 to Section 375 IPC.
In a significant judgment delivered on July 19, 2024, Justice Ravindra Maithani observed: “Exception 2 to Section 375 IPC cannot be taken out from it while reading Section 377 IPC in relation to husband and wife. If an act between husband and wife is not punishable due to operation of Exception 2 to Section 375 IPC, the same act may not be an offence under Section 377 IPC.”
The case, titled Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another (Criminal Misc. Application No. 2697 of 2019), arose from a challenge to a charge sheet and summoning order against the petitioner husband under Section 377 IPC and Sections 11/12 of the Protection of Children from Sexual Offences (POCSO) Act.
Background:
The case stemmed from an FIR lodged by the wife (respondent no. 2) against her husband (the petitioner) alleging that after their marriage in 2010, he continued to engage in non-consensual anal intercourse with her, causing her injuries. The wife also alleged that the husband would show obscene content to their young child to pressure her into complying with his demands.
Key Legal Issues:
1. Whether a husband can be prosecuted under Section 377 IPC for anal sex with his wife
2. Applicability of Sections 11 and 12 of the POCSO Act against the husband
Court’s Decision:
On Section 377 IPC:
The court held that if an act between husband and wife is not punishable under Section 375 IPC due to Exception 2, the same act cannot be an offence under Section 377 IPC. Justice Maithani relied on the Supreme Court’s judgment in Navtej Singh Johar vs Union of India (2018) to conclude that consensual acts between adults in private are not offences under Section 377 IPC.
The court observed: “In the instant case, according to the prosecution the petitioner has committed anal sex with the respondent no.2 on multiple occasions. The petitioner is 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.”
On POCSO Act charges:
The court upheld the summoning order regarding offences under Sections 11 and 12 of the POCSO Act. It noted that showing private parts and dirty movies to a child would prima facie amount to ‘sexual harassment’ punishable under the POCSO Act.
The court stated: “Exhibition of private part to a child, showing him dirty films, as told by the child himself prima facie makes out an offence under Section 11 read with Section 12 of the POCSO Act.”
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Conclusion:
The High Court partially allowed the petition, modifying the summoning order to set aside charges under Section 377 IPC while upholding charges under the POCSO Act. The court directed that the trial against the petitioner shall proceed only under Sections 11 and 12 of the POCSO Act.
The judgment was delivered by Justice Ravindra Maithani. Advocate Aditya Singh appeared for the petitioner husband, while Advocate Saurabh Pandey represented the State and Advocate Navneet Kaushik appeared for the wife and child.
