Madhya Pradesh High Court: In an application filed by the applicant-husband under Section 482 of the Criminal Procedure Code, 1973 (CrPC), seeking quashment of the FIR for offences punishable under Sections 377, 323, and 498-A of the Penal Code, 1860 (IPC) and the consequent criminal proceedings in sessions trial, a single-judge bench of G.S. Ahluwalia, J., partially allowed the applicant and held that the offence of marital rape, including forced unnatural sex, is not recognized under Section 377 IPC, but such acts still attracts Section 498-A IPC if accompanied by cruelty or assault.
In the instant matter, the wife-complainant (respondent 2) is the legally wedded wife of the applicant. She alleged that soon after their marriage on 02-05-2023, the applicant, under the influence of alcohol, would commit forced unnatural sex with her against her will. Upon her refusal, he would assault her and treat her with cruelty. Despite interventions from her parents and Mahila Paramarsh Kendra, the applicant did not desist. She eventually lodged an FIR alleging repeated unnatural sex and physical abuse.
The main issue in the instant matter is whether the allegation of unnatural sex by the husband with his wife makes out an offence under Section 377 IPC and whether, in the absence of dowry demands, the allegation of cruelty is sustainable under Section 498-A IPC.
The husband relied on Manish Sahu v. State of M.P., 2024 SCC OnLine MP 2603, and contended that unnatural sex with one’s wife is not covered under the definition of “rape” under Section 375 IPC, and consensual unnatural sex between adults is no longer punishable under Section 377 IPC in light of Navtej Singh Johar v. Union of India (2018) 10 SCC 1. Hence, no offence under Section 377 IPC is made out, and consequently, Section 498-A IPC should also fail as there were no dowry allegations.
However, the State contended that the husband committed unnatural sex against her will, and on resistance, subjected her to cruelty and assault, thereby making out a case under Section 498-A IPC.
The Court relied upon Exception 2 to Section 375 IPC and noted that sexual acts by a man with his wife (not below 15 years of age) do not constitute rape. The Court reiterated that marital rape is not yet recognized as an offence under Indian criminal law.
The Court referred to Navtej Singh Johar (Supra) and emphasised that consensual unnatural sex between adults, irrespective of gender, is no longer criminal. The Court further reiterated the position established in Manish Sahu (Supra) that marital rape, even if non-consensual and unnatural, is not yet recognised as a criminal offence under Section 377 IPC.
The Court held that “…if a wife is residing with her husband during the subsistence of a valid marriage, then any sexual intercourse or sexual act by a man with his own wife not below the age of fifteen years will not be rape… under these circumstances, absence of consent of wife for unnatural act loses its importance.” Thus, the offence under Section 377 IPC is liable to be quashed.
The Court noted that cruelty includes “any wilful conduct which is of such a nature as is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman.” The Court held that the specific allegations of physical assault upon resistance to forced unnatural sex constituted cruelty under Section 498-A IPC, hence, the proceedings under Section 498-A and 323 IPC is liable to be upheld.
“Committing unnatural sex with wife against her wishes and on her resistance, assaulting and treating her with physical cruelty will certainly fall within the definition of cruelty… demand of dowry is not sine qua non for cruelty.”
The Court partially allowed the application and quashed the FIR and proceedings insofar as they relate to Section 377 IPC but permitted to continue the proceedings under Sections 498-A and 323 IPC.
[Banti Jatav v. State of M.P., M.Cr.C. No. 32576 of 2024, Decided on 09-05-2025]
Advocates who appeared in this case :
Dr. Jitendra Singh Kushwah, Counsel for the Applicant
Shri Mohit Shivhare, Public Prosecutor, Counsel for the Respondent No. 1/State
Shri Vinod Kumar Dhakad, Counsel for the Respondent No. 2
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