Chhattisgarh HC rules husband cannot be prosecuted for ‘unnatural sex’; says ‘consent of wife loses importance’

The Chhattisgarh High Court has ruled that a husband cannot be prosecuted for rape (Section 376 of the Indian Penal Code, IPC) or unnatural sex (Section 377 of the IPC) for sexual intercourse, including unnatural acts, with his adult wife, even without her consent. Justice Narendra Kumar Vyas, presiding over a single bench, stated that a wife’s consent to sexual intercourse or unnatural acts is “insignificant” in such cases.

“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 her 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.” LiveLaw quoted the HC judge.

The Case

The case involved a husband accused of committing unnatural sex with his wife against her will on December 11, 2017. The wife was admitted to hospital and later died; her dying declaration stated that she became ill due to forceful sexual intercourse by her husband.

A post-mortem examination revealed rectal perforations, and the cause of death was determined to be peritonitis and rectal perforation.

The trial court convicted the husband under Sections 377, 376, and 304 (culpable homicide not amounting to murder) of the IPC, sentencing him to 10 years’ imprisonment. He appealed to the High Court.

Chhattisgarh High Court’s Reasoning

Justice Vyas addressed two key questions: whether Sections 376 and 377 of the IPC apply when the accused and victim are husband and wife, and whether Section 304 of the IPC is applicable.

Referring to Sections 375, 376, and 377 of the IPC, the HC stated that the amended definition of Section 375 IPC means that offences under Section 377 IPC between a husband and wife are not applicable, and rape cannot be established.

The Court referenced Exception 2 to Section 375, which states that sexual intercourse or sexual acts between a man and his wife (if the wife is over 15 years old) do not constitute rape. Therefore, any unnatural sex committed by a husband with his adult wife cannot be considered an offence.

The court also stated that the offender is classified as a ‘man’ but also a ‘husband’ and the victim a ‘woman’ but also a ‘wife’ and as the parts of the body used for intercourse are common, the offence between husband and wife cannot be made out under Section 375 IPC.

Consequently, if the wife is at least 15 years old, any sexual intercourse or act by the husband cannot be termed rape, and the wife’s consent becomes irrelevant. The court concluded that offences under Sections 376 and 377 of the IPC were not made out against the appellant.

Culpable Homicide Charge Overturned

Regarding the conviction under Section 304 of the IPC, the Chhattisgarh High Court deemed it “perverse,” noting that the trial court had not justified how Section 304 was applicable or proven by the prosecution.

The High Court overturned this conviction.

The husband was acquitted of all charges and ordered to be released from custody. The ruling reinforces the legal exception for marital rape in India, sparking debate and raising questions about women’s rights and bodily autonomy within marriage.