NEW DELHI: The Chhattisgarh high court has ruled that sexual intercourse, including unnatural acts, by a man with his adult wife, even without her consent, cannot be considered an offence.
The judgement was delivered by Justice Narendra Kumar Vyas, who acquitted a resident of Jagdalpur previously convicted of rape and other charges.
The man had been arrested in 2017 and later convicted by a trial court in Bastar district under IPC sections 376 (rape), 377 (unnatural sex), and 304 (culpable homicide not amounting to murder) following his wife’s death.
The high court had reserved its verdict on 19 November last year and pronounced it on Monday (10 February).
“If the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape as such absence of consent of wife for unnatural act loses its importance,” the judge noted.
According to the prosecution, the man, a resident of Jagdalpur, Bastar district, was arrested on 11 December 2017, following his wife’s statement to an executive magistrate before she passed away the same day in a government hospital.
The woman had complained of pain and informed her family that her husband had allegedly engaged in unnatural sex against her will. Her dying declaration, recorded before the magistrate, stated that she became ill due to “forceful sexual intercourse” by her husband.
On 11 February 2019, the Additional Sessions Judge (Fast Track Court) in Jagdalpur convicted the man under sections 377, 376, and 304 IPC and sentenced him to 10 years of rigorous imprisonment. He later challenged the verdict in the High Court at Bilaspur.
During the appeal hearings, the defence argued that there was no legally admissible evidence against the accused and that his conviction was solely based on the victim’s statement. The counsel further contended that the trial court had overlooked statements from two witnesses who testified that the woman had suffered from piles since her first childbirth, which caused bleeding and abdominal pain. He also questioned the reliability of the dying declaration.
The state government, however, defended the trial court’s judgement and sought the appeal’s dismissal.
The court, in its ruling, stated: “From perusal of sections 375, 376 and 377 of IPC it is quite vivid that in view of amended definition of Section 375 IPC, offence under Section 377 IPC between husband and wife has no place and, as such rape cannot be made out.”
It further noted that the 2013 amendment to Section 375 IPC introduced Exception 2, which clarifies that sexual intercourse or sexual acts by a man with his wife do not constitute rape. Therefore, if a husband engages in unnatural sex with his adult wife, it cannot be considered an offence under Section 377.
The court observed that Section 377 (unnatural sex) does not explicitly define the offender, although body parts involved in carnal intercourse are well defined and overlap with Section 375. It also cited the Supreme Court’s five-judge bench ruling in the Navtej Singh Johar case, which decriminalised consensual unnatural sex, and stated that an offence under Section 377 IPC is not applicable in cases of consensual acts.
“In the light of amended definition of Section 375 and the relationship for which exception provided for not taking consent – i.e. between husband and wife – and not making offence of section 376, it is quite vivid the definition of rape as provided under Section 375 for which consent is not required then unnatural sex cannot be made as unnatural offence between husband and wife,” the court observed.
As per Section 375 IPC, the accused is defined as a ‘man’, while the victim is classified as a ‘woman’. In this case, since the accused is the ‘husband’ and the victim is his ‘wife’, and given the overlap in body parts defined for carnal intercourse, the court ruled that no offence could be made out under Section 375 IPC due to the amendment.
“Thus, it is quite vivid, that if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance. Therefore, this court is of the considered opinion that the offence under Section 376 and 377 of the IPC against the appellant is not made out,” the judgement stated.
Regarding the conviction under Section 304 IPC, the High Court deemed it “perverse” and overturned it.
“The learned trial court has not recorded any finding how the offence under Section 304 of the IPC is attracted to the present facts of the case and proved by the prosecution. Still, it has convicted the appellant under Section 304 IPC, which is nothing but perversity and patent illegality which deserves to be interfered with by this court,” the court observed.
The judge acquitted the man of all charges and ordered his immediate release from prison.