“IS COMPLAINT BY WIFE OF FORCED UNNATURAL SEX AGAINST HUSBAND PUNISHABLE UNDER SECTION 377 OF THE INDIAN PENAL CODE?”¹

The issue at hand revolves around the compatibility of Section 375 and Section 377 of the IPC concerning cases of forced unnatural sex involving spouses.

In the Indian legal context, the distinction between marital and non-marital sexual acts has been a subject of significant debate, particularly concerning the definitions of rape and unnatural sex as outlined in Sections 375 and 377 of the Indian Penal Code (IPC), respectively.

Therefore, the issue at hand revolves around the compatibility of Section 375 and Section 377 of the IPC concerning cases of forced unnatural sex involving spouses. However, the bare reading of both the sections highlights the inherent contradiction between Exception 2 of Section 375 and Section 377 of the IPC regarding the applicability of the law in cases of forced unnatural sex between a husband and wife.

Section 375 of IPC, amended on February 3, 2013, broadens the definition of rape to include not only traditional penile-vaginal penetration but also penetration of the vagina, mouth, urethra, or anus with a penis, any object, or any body part, and the application of the mouth to the vagina, anus, or urethra. Importantly, it stipulates that such acts are considered rape if they occur under seven specified non-consensual circumstances. However, an exception is made for sexual acts between a man and his wife if the wife is over 15 years old, effectively excluding such acts from being classified as rape even if forced; The amended definition reads as under:

“375. Rape: A man is said to commit “rape” if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:

First. Against her will.

Secondly. Without her consent.

Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. With or without her consent, when she is under eighteen years of age.

Seventhly. When she is unable to communicate consent.

Explanation 1. For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1. A medical procedure or intervention shall not constitute rape.

Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

From aforesaid, it is apparent that ‘Exception 2 of section 375 of the IPC, does not make aforesaid sexual acts as “Rape”, against the woman, who is WIFE and is above the age of 15 years, even if said acts are forced on her.

The Exception 2 faced challenges in court for discriminating between married and unmarried women, violating fundamental rights in the case of, “RTI Foundation vs Union of India”² . However, this section remains in place following a split verdict by the Hon’ble High Court of Delhi.

On the other hand, Section 377 of the IPC criminalizes unnatural sex, defined broadly to include any carnal intercourse against the order of nature, irrespective of the relationship between the individuals involved i.e., section 377 of the IPC criminalizes abovementioned without any specific exemptions for marital relationships. Section 377 of the IPC reads as under:

“Section 377: Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Exception 2 of Section 375 of the IPC exempts sexual intercourse or sexual acts by a man with his own wife, even if forced, from being considered rape, provided the wife is not under fifteen years of age. However, Section 377 of the IPC criminalizes unnatural sex irrespective of the relationship between the individuals involved.

In the landmark judgement of Navtej Singh Johar and others v. Union of India³ , the Hon’ble Supreme Court clarified that consensual acts covered under this Section 377 of the IPC are not punishable.

Exception 2 under section 375 of the IPC, bars a wife exceeding the age of 15 years, from filing a criminal complaint against her husband even if she is subjected to forced sex including unnatural sex. Whereas, Section 377 of the IPC on the other hand does not create any such bar/exemption. Therefore, question arises can a criminal complaint filed by a wife against her husband for forced unnatural sex under Section 377 of the IPC, is maintainable, considering there is contradiction in section 375 and 377 of the IPC?

This contradiction has arisen from the reason that subsequent to the amendment of 2013 in the definition of ‘Rape’ under Section 375 of the IPC, it covers the unnatural sex, which is an offence under section 377 of the IPC, punishable for a term which may extend to ten years, and shall also be liable to fine.

This proposition, “Whether the offence of Section 377 of the IPC between husband and wife can be weighed parallel to the offence of rape as defined under section 375 of the IPC”, came before the Hon’ble High Court of Madhya Pradesh, in the case of, “Umang Singhar vs State of Madhya Pradesh & Anr.”⁴.

In the said judgement, the Hon’ble High Court of Madhya Pradesh relying upon the judgment passed by the Hon’ble Supreme Court in “Dharangadhra Chemical Works v. Dharangadhra Municipality and another”⁵ , held that, “if two provisions of law are enacted, later is inconsistent or repugnant to the earlier provision, then the two cannot stand together, the earlier is abrogated by the latter. The Court was of the view that if the offence between husband and wife is not made out under Section 375 of the IPC and due to amendment in the definition of ‘Rape’ in Section 375 of the IPC, which includes unnatural sex, then how would the offence under Section 377 of the IPC be attracted if it is committed between husband and wife, considering that due to repugnancy in the two sections, later enactment of section 375 of the IPC, will prevail over Section 377 of the IPC”.

As per the current legal scenario, until ‘Exception 2’ of Section 375 of the IPC is struck down being violative of the Article 14, 19 and 21 of the Constitution of India, the criminal complaint filed by the wife against her husband for forced unnatural sex under section 377 of the IPC is not maintainable.