The Court said the law presumes a wife’s implied consent for sexual intercourse and sexual acts including anal and oral sex in a marriage.
The Delhi High Court recently ruled that Section 377 of the Indian Penal Code (IPC), which criminalises unnatural sexual acts, cannot be applied to prosecute a husband for engaging in anal or oral sex with his wife.
Justice Swarana Kanta Sharma observed that under the law, a husband is shielded from prosecution under Section 377, as there is a presumption of implied consent by the wife for sexual intercourse and related acts, including anal and oral sex, within the bounds of marriage.
“Thus, in the considered opinion of this Court, 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 since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts (including anal or oral intercourse within a marital relationship),” the Court said.
The single-judge bench clarified that Section 377 of the IPC cannot be invoked to criminalise non-penile-vaginal intercourse between a husband and wife within the context of a marital relationship.
“Such an interpretation would be in line with the reasoning and observations of the Hon‘ble Supreme Court in Navtej Singh Johar (judgment),” the Court said.
The Bench reached this decision while overturning a trial court order that had framed charges under Section 377 IPC against a man.
The case stemmed from a complaint by his wife, who alleged that the husband did not consummate the marriage despite multiple attempts but engaged in oral sex with her during their honeymoon.
She also accused her father-in-law of rape and her brother-in-law of physical assault.
While the trial court dismissed the charges against the other accused, it found a prima facie case under Section 377 against the husband.
However, the High Court disagreed with the trial court’s assessment and set aside the charges.
The Court noted that the woman had not explicitly claimed that the husband engaged in oral sex with her without her consent.
As a result, charges could not be framed against him, since consensual oral or anal intercourse between two adults in private does not constitute a criminal offence.
“It is pertinent to note that the complainant and the petitioner herein are legally wedded to each other, and the allegations arise from a matrimonial dispute. Importantly, the complainant has not specifically alleged that the act of oral sex was performed against her will or without her consent,” the Court said.
The Court further observed that the woman’s allegations were vague and that the evidence did not substantiate the essential elements of the alleged offence.
“In light of the above, and considering the material placed on record, this Court is of the considered opinion that no prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside,” the Bench ordered.