Unnatural sex between a husband and wife would not amount to rape as Indian law does not recognise the offence of marital rape, the Madhya Pradesh High Court has observed. The court added that the consent of the wife becomes immaterial in such cases.

Justice Gurpal Singh Ahluwalia was hearing a petition by a man named Manish Sahu challenging a case filed against him by his wife. The woman alleged that her husband had unnatural sex with her on June 6 and June 7, 2019, as also on several occasions afterwards.

Sahu contended that as he and the complainant were married, unnatural sex between them was not a crime under Section 377 of the Indian Penal Code.

The judge held that if the wife was living with her husband while the marriage was valid, any sexual intercourse between them would not constitute rape, as long as the wife was not below 15 years of age.

“…Under these circumstances, absence of consent of wife for unnatural act loses its importance,” the court said in its verdict on May 1. “Marital rape has not been recognised so far.”

Exception 2 to Section 375 of the Indian Penal Code states that forcible sexual intercourse by a man with his wife is not rape unless the wife is below 15 years of age. Section 375 defines the offence of rape.

The High Court noted that in 2013, the definition of rape was widened to include “all sorts of unnatural acts”. It said that in view of Exception 2 to the law that defines rape, the consent of the wife “becomes immaterial”.

Justice Ahluwalia allowed Sahu’s application and quashed the case against him.

Section 377 of the Indian Penal Code deals with unnatural sexual intercourse. In September 2018, the Supreme Court, while decriminalising homosexuality, read down the provision and declared all forms of consensual sex between adults to be legal. This meant that while Section 377 remained valid, it could no longer be used to criminalise homosexuality.

Legal battle on marital rape exception

Multiple petitions challenging the marital rape exception in Section 375 of the Indian Penal Code are pending before the Supreme Court. However, no hearing has taken place in the matter since January 2023.

The Indian Penal Code is set to be replaced by the Bharatiya Nyaya Sanhita, 2023 as the official law on criminal offences in India on July 1. Section 63 of the legislation, which defines rape, is identical to Section 375 of the Indian Penal Code and retains the marital rape exception.

In an affidavit filed in January 2022 before the Delhi High Court, the Centre had said that criminalising marital rape “could open floodgates of false cases being made with ulterior motives.

In the last few years, the High Courts of Karnataka and Gujarat have overruled the marital rape exception and allowed the prosecution of husbands accused of raping their wives. The sanction by the Karnataka High Court, however, was subsequently stayed by the Supreme Court.