The Delhi High Court has quashed a trial court order that directed the prosecution of a husband under Section 377 of the Indian Penal Code (IPC) for allegedly performing oral sex with his wife, stating that the law does not recognise the concept of marital rape.
Justice Swarana Kanta Sharma, while delivering the judgment, held that Section 377 – which criminalised “unnatural offences” – cannot be applied within a marital relationship in the absence of specific allegations of non-consensual acts. The ruling came in response to a petition filed by the husband challenging the trial court’s decision to frame charges under Section 377 IPC.
“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 IPC,” the court observed. “The law now presumes implied consent for sexual intercourse, including anal or oral intercourse, within a marital relationship.”
The High Court noted that the complainant (wife) did not explicitly claim that the act was non-consensual or performed against her will. Citing the Supreme Court’s landmark judgment in Navtej Singh Johar v. Union of India, which decriminalised consensual sexual acts among adults, the court said the absence of the essential ingredient of “lack of consent” made it untenable to prosecute the husband under Section 377.
“There is not only a lack of prima facie case, but even the threshold of strong suspicion is not met,” the court stated, holding that the charges against the man were unsustainable in law.
The judge also underlined an “inherent contradiction” in the wife’s allegations — while she claimed the man was impotent, she also accused him of performing oral sex, which undermined the credibility of her complaint.
The verdict further clarified that acts like oral or anal sex now fall under the scope of Section 375(a) IPC, which defines rape. However, the marital exception to rape continues to provide immunity to husbands, and Section 377 cannot be invoked to criminalise non-penile-vaginal intercourse between spouses.
“In the context of a marital relationship, Section 377 IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife,” the judgment said.
The wife had also alleged that the marriage was a conspiracy by the man and his father to extort money from her family. The husband, however, contended that the marriage was valid and there was implied consent for consensual sexual acts within it.
With this ruling, the Delhi High Court has reiterated the legal position that, in the absence of legislative recognition of marital rape, criminal provisions like Section 377 cannot be extended to acts within marriage unless there is a clear lack of consent.
