The Delhi High Court has held that Section 377 of the Indian Penal Code (IPC) cannot be used to prosecute a husband for non-penile-vaginal sexual acts with his wife. The Court emphasized that within a marital relationship, such acts—when consensual—do not constitute an offence under Section 377 IPC.
“The law presumes implied consent within a marriage for all sexual acts, not just penile-vaginal intercourse,” stated Justice Swarana Kanta Sharma while setting aside a lower court's order that had framed charges against a husband under Section 377 IPC.
The case arose from an FIR filed by a wife, alleging that her husband was impotent and unable to consummate their marriage, even after medication. She also claimed physical assault by in-laws and accused her father-in-law of attempting to rape her. The FIR initially included charges under Sections 354, 354B, and later added Section 377, among others.
The wife alleged that during their honeymoon, the husband engaged in oral sex. However, she did not mention that the act was non-consensual. This absence of explicit non-consent was key to the court's reasoning.
“In the absence of any statement that the act was without consent or under duress, no offence under Section 377 IPC is made out,” the Court said.
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Justice Sharma highlighted that following the 2013 amendment, Section 375 IPC (which defines rape) now includes various sexual acts such as oral and anal sex. However, Exception 2 to Section 375 IPC still exempts a husband from being charged with rape if the wife is above fifteen years of age. This implies that such acts, if consensual, are not criminal within a marriage.
Quoting the Supreme Court’s ruling in Navtej Singh Johar v. Union of India, the Court noted:
“Section 377 is unconstitutional to the extent it criminalizes consensual sexual acts between adults in private.”
The Court further clarified that if an act is not rape under Section 375, it cannot be made an offence under Section 377, especially when consent is not in question. Citing the Madhya Pradesh High Court and Uttarakhand High Court rulings, the judgment reaffirmed that using Section 377 IPC against a husband in a subsisting marriage is legally flawed.
It was also observed that:
“A charge cannot be framed merely on vague allegations or when essential elements of the offence are not present.”
In this case, the wife’s statement under Section 164 CrPC merely mentioned the act of oral sex but did not claim it was forced or non-consensual. The contradiction between her claims of the husband’s impotence and the sexual act further weakened the case.
Justice Sharma concluded that:
“There is not even a strong suspicion, let alone a prima facie case, to justify framing of charge under Section 377 IPC.”
Accordingly, the High Court set aside the lower court’s order and quashed the charges under Section 377 IPC against the husband.
Case Title: SK v. THE STATE NCT OF DELHI
