'Law doesn't recognise concept of marital rape': Delhi High Court quashes Sec 377 case against husband

New Delhi: Saying the law doesn't recognise the concept of marital rape, the Delhi High Court has quashed an order directing prosecution of a man for performing "unnatural" sex with his wife.

The court noted Section 377 of IPC penalising such acts won't apply in a marital relationship particularly when the allegation of consent was missing.

Justice Swarana Kanta Sharma was dealing with the man's plea against a trial court order which directed framing of Section 377 (punishment for unnatural offences) charge against him for allegedly performing oral sex with his wife.

The verdict said the law did not recognise the concept of marital rape.

"There is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse within a marital relationship," it said.

The high court noted the wife did not specifically allege if the act was performed against her will or without her consent.

"The essential ingredient of lack of consent – central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar (case) between any two adults – is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met," the court said.

The top court in the Navtej verdict de-criminalised consensual sex among adults, including those from the same sex.

"No prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside," the court added.

The court further said acts such as anal intercourse or oral sex were included within the ambit of offence of rape under the Section 375(a) of IPC and there was no basis to assume that the petitioner would not fall within the immunity granted to husbands under the "exception" to the offence of rape.

"In the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife. Such an interpretation would be in line with the reasoning and observations of the Supreme Court in Navtej Singh Johar (case)," said the court in its May 13 order.

It came on record that the wife claimed the man was "impotent" and their marriage was the result of a conspiracy by him and his father to establish illicit relations and extort money from her family.

The man argued the marriage was legally recognised and there was an implied presumption of consent for consensual sexual acts and its nature could not constitute an offence under Section 377.

The judge underlined an "inherent contradiction" in the statement of the wife who on the one hand alleged sexual incapacity of the man and levelled allegations suggesting the performance of oral sex on the other.