Court to examine if husband can indulge in unnatural sex with wife

Can a man be prosecuted for indulging in unnatural sexual act with his wife without her consent? Yes, according to Section 377 of the IPC.

But the amendment brought in penal laws in 2013 after the infamous gang rape case of a Delhi girl in a moving bus here has created an “anachronistic situation”. The protection granted to husbands under Section 375 (Rape) of IPC has been “wrongfully” extended to him for unnatural act as well, making it inconsistent with Section 377 (unnatural sexual act) of the IPC. The Criminal Law Amendment Act, 2013, by inserting clause (a) to (d) in Section 375 IPC, has broadened the definition of rape.

But the provision has retained the exception to the section stating sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. With this exception, a question arises whether husband should be prosecuted for his said unnatural sexual act on the complaint of his wife or not.

Such a legal issue arose before a Delhi court recently when a man, facing rape and unnatural sex charge by his wife, contended that in view of the amendment, he could not be tried for the offence.

Advocate Amit Kumar, representing the husband, contended before Additional Sessions Judge Lokesh Kumar Sharma that the man could not be prosecuted. He said since the issue has not been decided yet by the superior courts, the matter must be referred to the Delhi High Court.

“The amendment in Section 375 IPC was made in haste and the same is incorrect. Amendment in Section 375 has made Section 377 inconsistent and uncertain for married couples,” he argued.

The judge agreed to examine the issue and called for all trial court records on July 22. The court also issued notice to the Delhi government, seeking its response. The counsel said, “In the present circumstances, prosecution of husbands on the similar complaint of wives deserves to be stayed across the country until the said issue is settled by superior courts. The present issue has wider social ramification.”