Allahabad High Court: In an application filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking to quash the entire proceedings of a criminal case involving offences under Sections 498-A, 323, 504, 506, and 377 of the Penal Code, 1860, (‘IPC’) and Section 3 read with Section 4 of the Dowry Prohibition Act, pending before the Court of the Additional Chief Judicial Magistrate, including the chargesheet and the summoning/cognizance order, the Single Judge Bench of Arun Kumar Singh Deshwal*, J. declined to quash the case, and held unnatural sexual intercourse by a man with his own wife without her consent, even if she is above 18 years, would be punishable under Section 377 IPC though that may not be rape as per Section 375 IPC.
The present case involved the question of whether carnal intercourse by a husband with his wife against her wishes would amount to an offence under Section 377 IPC.
After examining the provisions of Section 377 IPC, the Court noted that carnal intercourse with a man, woman, or animal per se constitutes an offence. However, the constitutional validity of this provision was addressed by the Supreme Court in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, wherein it was held that consensual sexual intercourse between two adults would not attract the offence under Section 377 IPC. To that extent, the section was declared ultra vires Articles 14, 15, 19, and 21 of the Constitution. Nonetheless, the Supreme Court clarified that carnal intercourse without consent between adults, or any such act involving animals or minors, would continue to be punishable under Section 377 IPC.
The Court emphasised two expressions in the section—‘carnal’ and ‘against the order of nature’, remain central to its interpretation.
The Court observed that, as per Black’s Law Dictionary, the term ‘carnal’ is defined as “means of the body, relating to the body, fleshy or sexual”. Similarly, according to the New International Webster’s Comprehensive Dictionary, ‘carnal’ is defined as: (i) pertaining to the fleshly nature or the bodily appetites; (ii) sensual, sexual; (iii) pertaining to the flesh or to the body; not spiritual; hence worldly.
In light of these definitions, the Court noted that ‘carnal’ refers to a broader concept than mere sexual intercourse, which traditionally relates only to penile-vaginal intercourse. Furthermore, the Court noted that the word ‘unnatural’ or the phrase ‘against the order of nature’, although central to the interpretation of Section 377 IPC, has not been specifically defined in the Penal Code.
The Court noted that, traditionally, sexual intercourse was considered natural only if it was for the purpose of procreation, and all other forms of intercourse were deemed unnatural or against the order of nature. However, this narrow interpretation has evolved both globally and within India. It is now widely accepted that the earlier definition of natural sex is no longer valid. In Navtej Singh Johar (supra), the Supreme Court categorically held that carnal intercourse between members of the LGBTQIA+ community, though they may constitute a minority, is a natural expression of sexual orientation.
The Court further observed that, prior to the amendment to Section 375 IPC, the offence of rape was confined to sexual intercourse by a man with a woman against her will or without her consent—excluding cases where the woman was the man’s wife and above the age of 15 years, which was not considered rape under the exception clause.
Upon perusal of the amended definition of rape under Section 375 IPC, the Court noted that certain sexual acts which were earlier considered unnatural under Section 377 IPC are now expressly included within the definition of rape, if committed against the will or without the consent of a woman by a man. As per the amended provision, penile penetration into the vagina, insertion of any object or any part of the body (other than the penis) into the vagina or anus, and the application of the mouth to the vagina, anus, or urethra of a woman—all constitute rape if done without her consent.
However, the Court further observed that Exception (ii) to Section 375 stipulates that such acts shall not amount to rape if committed by a man with his own wife, provided she is above 18 years of age.
The Court took note of Manish Sahu v. State of M.P., 2024 SCC OnLine MP 2603, wherein it was held that unnatural sex by a man with his wife even against her consent not an offence u/s 377 IPC, is that the same has not been punishable as rape under Section 375 IPC.
The Court disagreed with the reasoning adopted by the Madhya Pradesh High Court, in Manish Sahu (supra) emphasizing that a woman, though above 18 years of age and legally married, retains her individual identity and autonomy, including the right to choose her sexual orientation. The Court underscored that this choice must be protected under the Constitution. Merely by virtue of being a wife, a woman does not forfeit her fundamental right to withhold consent, particularly in relation to unnatural sex. A woman, despite being married, continues to possess an independent right to bodily autonomy, sexual orientation, and personal dignity, all of which are intrinsic to her fundamental rights.
The Court highlighted that in Navtej Singh Johar ( supra) it was also observed that Section 377 IPC, unlike Section 375 IPC, is a gender neutral provision as it uses the word ‘whoever’ and that the punishment for consensual sexual activity between two adults, be them a homosexual, heterosexual and lesbian, cannot be regarded as constitutional. However, if any act of carnal intercourse between the individuals is done without the consent of anyone of them, then the same would be punishable under Section 377 IPC
Thus, the Court held that carnal intercourse, other than penile-vaginal intercourse, does not constitute the natural sexual orientation for the majority of women. Consequently, such acts cannot be performed by a husband upon his wife without her consent. The Court affirmed that unnatural sexual intercourse by a man with his own wife, without her consent, even if she is above 18 years of age, would be punishable under Section 377 IPC. While such an act may not fall within the definition of rape under Section 375 IPC due to the marital exception, it nonetheless constitutes an offence under Section 377 IPC.
The Court concluded that the submission of the accused that no offence under Section 377 IPC is made out is misconceived. The Court held that the act of unnatural intercourse committed by the accused on his wife was against her will and, therefore, squarely attracts the provisions of Section 377 IPC. Thus, the Court declined to quash the proceedings.
[Imran Khan v. State of UP, Application under Section 528 BNSS No. 11862 of 2025, decided on 06-05-2025]
*Judgment Authored by: Justice Arun Kumar Singh Deshwal
Advocates who appeared in this case:
Counsel for Applicant :- Saiyad Iqbal Ahmed,Sharique Ahmed
Counsel for Opposite Party :- Manish Kumar Tripathi,G.A
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