“Section 377 IPC Can’t Be Applied To Prosecute Husband In Marital Relationship”: Delhi HC

Delhi High Court

In a significant judgment, the Delhi High Court ruled that Section 377 of the Indian Penal Code (IPC)—which criminalises certain sexual acts—can’t be applied to a husband in a marital relationship unless there are clear allegations of non-consent from the wife.

Justice Swarana Kanta Sharma’s Ruling

The court held that sexual acts such as oral or anal intercourse between spouses cannot be criminalised under Section 377 IPC in the absence of specific claims that the acts were non-consensual or coerced.

“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,” said Justice Sharma.

Legal Context

Section 375 IPC defines rape but includes Exception 2, which states that sexual intercourse by a man with his own wife (above 15 years) is not rape—thus legally presuming implied consent within marriage.

After the 2013 amendment, Section 375 was broadened to include oral and anal sex under the definition of rape. However, the marital rape exception remains.

Section 377 IPC, historically used to criminalise “unnatural sex,” remains applicable only when such acts are non-consensual or involve minors post the Supreme Court’s Navtej Singh Johar ruling (2018), which decriminalised consensual homosexual acts.

The Case

A woman lodged an FIR against her husband alleging:

He was unable to consummate the marriage, even after using medication.

When she confronted his family, she was physically assaulted.

The marriage was allegedly a conspiracy to extort money.

The trial court had framed charges under Section 377 IPC. However, the High Court quashed these charges, stating:

“The wife did not specifically allege that oral sex was performed against her will or without her consent.”

Justice Sharma emphasized that lack of consent is a central element in constituting an offence under Section 377 after the Navtej Johar ruling. Since the complaint lacked any explicit claim of non-consent, the court held there was no prima facie case or even strong suspicion to justify framing charges.

Key Observations

A charge under Section 377 cannot be framed based on vague or general allegations.

There must be clear, specific accusations of non-consensual acts or coercion.

Implied consent under marriage, as interpreted by existing law, extends to other sexual acts, not just penile-vaginal intercourse.

Broader Implications

While the court acknowledged that India does not yet recognise marital rape as a crime, this judgment reinforces that prosecutions under Section 377 require evidence of non-consensual acts, even within marriage.

It also reflects the post-Navtej Singh Johar interpretation of Section 377, aligning it with constitutional values and ensuring that it is not used arbitrarily within personal relationships.