The Allahabad High Court recently ruled that non-consensual unnatural sexual intercourse by a man with his wife, even if she is above 18 years of age, is a punishable offence.
Justice Arun Kumar Singh Deshwal said that sex other than penile-vaginal intercourse is not a natural orientation of sex for the majority of women and the same cannot be done by the husband without the consent of the wife.
Hence, the judge held that even though the act may not fall under the definition rape in Section 375 of the Indian Penal Code (IPC), the offence is punishable under Section 377 which criminalises unnatural sexual offences.
“Given the above analysis, it is clear that carnal sex, other than penile-vaginal intercourse is not a natural orientation of sex for the majority of women, therefore the same cannot be done by the husband, even with his wife without her consent. Therefore, this court holds that unnatural sexual intercourse by a man with his own wife without her consent, even if she is above 18 years, would be punishable u/s 377 IPC though that may not be rape as per Section 375 IPC,” the single-judge stated.
In doing so, the Allahabad High Court disagreed with the judgment of the Madhya Pradesh High Court which had held that unnatural sex committed by a man with his wife, who is above 18 years, is no more a rape as per Section 375 of the IPC, therefore, same cannot be an offence under Section 377.
"A wife may be above 18 years but as an individual identity she has a choice for sexual orientation that has to be protected, and merely because she is a wife of a man, her fundamental right not to give consent against the unnatural sex cannot be taken away. A woman despite being a wife also has individual right to particular sexual orientation and dignity,” Justice Deshwal reasoned.
Sex, other than penile-vaginal intercourse is not a natural orientation of sex for the majority of women and the same cannot be done by the husband, even with his wife without her consent.
Allahabad High Court
The Bench rendered these findings while dealing with a plea filed by a man named Imran Khan alias Ashok Ratna, challenging the proceedings against him under Sections 498A (cruelty to wife), 323 (causing hurt), 504 (intentional insult), 506 (criminal intimidation), 377 (unnatural offences) of the IPC and certain provisions of the Dowry Prohibition Act in Prayagraj district.
He had argued that offence under Section 377 of the IPC was not applicable in the case because he and the complainant are married.
However, the Bench rejected the arguments and dismissed the case.
“In view of the above discussion, the submission of learned counsel for the applicant that no offence u/s 377 IPC is made out against the applicant is misconceived because the unnatural intercourse committed by the applicant upon the opposite party no.2 was against her will,” the Court said.
A woman despite being a wife also has individual right to particular sexual orientation and dignity.
Allahabad High Court
