The Madhya Pradesh High Court observed that despite ‘Marital rape’ not being recognized as an offence in India, any sexual intercourse, including unnatural sex by a husband with his wife, does not constitute rape, as the wife’s consent is deemed irrelevant in such instances.
Justice Gurpal Singh Ahluwalia’s bench affirmed that as long as a wife resides with her husband in a valid marriage and is not below fifteen years of age, any sexual intercourse or act by the husband with his wife does not qualify as rape.
“…insertion of penis in the anus of a woman has also been included in the definition of ‘rape’ and any sexual intercourse or sexual act by the husband with her wife, not below the age of fifteen years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance“, the judge observed.
However, the Court specified that the sole exception to this legal stance is outlined in Section 376-B of the Indian Penal Code (IPC), wherein engaging in sexual activity with one’s own spouse during a period of separate living due to judicial separation or other circumstances would constitute rape.
Referring to Exception 2 of Section 375, the Court highlighted that sexual intercourse or sexual acts by a husband with his wife provided she is not under fifteen years of age, do not meet the criteria for rape.
These observations arose in the context of quashing an FIR filed by a wife against Manish Sahu, which included allegations such as the commission of an unnatural offence under Section 377 of the IPC.
It’s important to note that under Section 375 of the Indian Penal Code (IPC), rape encompasses all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 IPC exempts sexual intercourse between a husband and a wife aged over 15 years from being classified as “rape,” thereby shielding such acts from prosecution.
It’s worth noting that in October 2017, the Supreme Court, in the case of Independent Thought vs. Union of India (2017), interpreted ’15 years’ in Exception 2 to Section 375 as ’18 years,’ thereby extending the scope of the rape offence to include sexual relations with a minor wife.
In the case at hand, the wife/respondent No.2 filed an FIR against her husband, alleging that after their marriage, during her second visit to her matrimonial home, her husband/applicant engaged in unnatural sexual acts with her on the night of June 06, 2019, and June 07, 2019. Subsequently, he continued to engage in such acts on multiple occasions.
In response to the FIR, the applicant-husband contested that as husband and wife, any unnatural sexual activity between them does not constitute an offence under Section 377 of the IPC. He challenged the FIR in the High Court.
