Madhya Pradesh High Court: In an application for the quashing of the FIR under Section 482 of the CrPC contending that consensual acts between spouses does not constitute an offence under Section 377 of the Penal Code, 1860 (IPC), a single-judge bench comprising of G.S. Ahluwalia, J., held that consensual acts between adults, irrespective of gender, are not offences under Section 377 of the IPC, in line with the amended definition of “rape” and the principles established by the Supreme Court. The Court held that “Marital rape has not been recognized so far.”
In the instant matter, the prosecutrix, wife of the applicant, lodged an FIR against him alleging unnatural sexual intercourse and threats of divorce. She claimed harassment by her in-laws due to dowry demands and further alleged that her husband had forced unnatural sex upon her on multiple occasions. The applicant filed for the quashing of the FIR under Section 482 of the CrPC, arguing that consensual acts between spouses do not constitute an offense under Section 377 of the IPC.
Referring to the amended definition of “rape” under Section 375 IPC, the Court opined that if the wife is not below the age of fifteen and the marriage is subsisting, such acts do not amount to rape. The Court stated that “amended definition of “rape” under Section 375 of IPC by which the 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 Court further noted that the Supreme Court in Navtej Singh Johar v. Union of India, (2018) 1 SCC 791, has decriminalized consensual sexual conduct between adults of the same sex under Section 377. Therefore, the absence of consent for unnatural acts loses significance in the context of marital relations. The Court also dismissed the argument regarding the delay in reporting, stating that since the alleged act itself was not an offense, the timing of reporting became irrelevant. The Court held that consensual unnatural sex between spouses does not constitute an offense under Section 377 of the IPC.
“…the act of unnatural sex by a husband with his legally wedded wife residing with him is not an offence under Section 377 of IPC, no further deliberations are required as to whether FIR was lodged on the basis of frivolous allegations or not.”
The Court emphasized the importance of consent in determining the criminality of sexual acts and concluded that marital rape has not been recognized under current law. The Court held that consensual unnatural sex between spouses does not constitute an offense under Section 377 of the IPC. Consequently, the Court quashed FIR and dismissed the criminal prosecution of the applicant.
[Manish Sahu v. State of M.P., 2024 SCC OnLine MP 2603, order dated 01-05-2024]
*Judgment by Justice G.S. Ahluwalia
Advocates who appeared in this case :
Shri Sajidulla Khan, Counsel for the Applicant
Shri Dilip Parihar, Counsel for the Respondent No. 1/State
Shri Umesh Vaidh, Counsel for the Respondent No. 2
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