In a significant ruling, the Delhi High Court has held that Section 377 of the Indian Penal Code (IPC), which criminalizes “carnal intercourse against the order of nature,” cannot be applied to prosecute a husband for oral or anal sex with his wife, in the absence of any allegation of non-consent. The Court ruled that such acts within a marital relationship are legally protected under Exception 2 to Section 375 IPC and are outside the ambit of Section 377 IPC.
Case Background
The case arose from a criminal revision petition challenging an order passed by a Sessions Court, which had directed the framing of a charge under Section 377 IPC against a husband. The proceedings stemmed from an FIR lodged by the wife, who alleged that their marriage was not consummated due to the husband’s purported sexual dysfunction. She later alleged instances of sexual misconduct during their honeymoon, including an incident of oral sex.
Following her statement recorded under Section 164 of the Code of Criminal Procedure (CrPC), a chargesheet was filed under Sections 354, 354B, 376, 377, and 323 IPC. The Sessions Court discharged all other accused but directed that the husband face trial under Section 377 IPC, stating:
“As against the accused husband…, there are clear allegation that he did oral sex with the prosecutrix against her consent.”
Submissions
Counsel for the petitioner argued that the complainant had never alleged that the act of oral sex was without her consent. It was submitted that the complainant’s statement simply described the act but did not indicate force, coercion, or absence of consent. The defence emphasized that under Exception 2 to Section 375 IPC, sexual acts between a husband and wife, where the wife is above fifteen years of age, are not punishable as rape, and that this legal protection extends to acts now covered under the broader definition of “rape” following the 2013 Criminal Law (Amendment) Act.
It was also contended that acts such as oral or anal sex, previously criminalized under Section 377 IPC, are now included in Section 375 when performed without consent—and since the complainant never alleged lack of consent, the framing of charge under Section 377 was unsustainable.
The State opposed the petition, maintaining that questions regarding consent should be adjudicated during trial and not at the stage of framing of charge.
Court’s Analysis
Justice Swarana Kanta Sharma observed that Section 377 IPC historically penalized non-vaginal sexual acts regardless of consent, but its scope was substantially altered following the Supreme Court’s landmark ruling in Navtej Singh Johar v. Union of India [(2018) 10 SCC 1], which decriminalized consensual sexual acts between adults in private.
The High Court emphasized that the 2013 amendment to Section 375 IPC expanded the definition of rape to include oral and anal sexual acts but maintained the marital exception, stating:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The Court noted:
“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… Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife.”
In reference to the act of anal sex specifically, the Court stated:
“The definition of rape as provided under Section 375 includes penetration of penis in the parts of the body i.e. vagina, urethra or anus of a woman… 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 also scrutinized the complainant’s statement under Section 164 CrPC, which read:
“Hum Manali gaye, vahan oral sex hua, unhone apna private part mere muhh mei dala,”
and found that it did not include any indication of coercion or absence of consent.
The Court held that:
“What is conspicuously absent – is any allegation that the act complained of was non-consensual or performed under duress… There is not only a lack of prima facie case, but even the threshold of strong suspicion is not met.”
The Sessions Court’s finding that the oral sex occurred “against her consent” was found to be a misreading of the record.
Conclusion
The High Court concluded that in light of the amended legal framework and binding judicial precedent, Section 377 IPC could not be invoked in a marital context unless there is a specific allegation of lack of consent. The absence of such an allegation rendered the charge unsustainable.
The Court held:
“The impugned order dated 16.02.2024, to the extent it directs framing of charge under Section 377 of IPC against the petitioner, is quashed and set aside.”
The revision petition was allowed, and all pending applications were disposed of.
