Section 377 can't criminalise oral sex in marriage: Delhi HC quashes marital rape order
The court underlined that Section 377 penalising such acts won't apply in a marital relationship, particularly when the allegation of consent was missing.
Justice Swarana Kanta Sharma was dealing with the man's petition against a trial court order which directed framing of Section 377 (punishment for unnatural offences) charge against him for allegedly performing oral sex with his wife.
The verdict on May 13 said the law did not recognise the concept of marital rape.
"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 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse within a marital relationship," the court said.
Noting that the wife did not specifically allege if the act was performed against her will or without her consent, the Delhi high court said, 'The essential ingredient of lack of consent – central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar (case) between any two adults – is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met.'
In the Navtej judgment, the Supreme Court struck down the criminalisation of consensual sexual relations between adults, including those of the same sex.
"No prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside," the court stated.
The bench also noted that acts like anal or oral sex are now covered under the scope of rape as defined in Section 375(a) of the IPC, and there was no reason to believe that the petitioner would not be protected by the immunity granted to husbands under the 'exception' to the rape provision.
"In the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife. Such an interpretation would be in line with the reasoning and observations of the Supreme Court in Navtej Singh Johar (case)," said the court in the order.
It came on record that the wife had alleged the man was "impotent" and accused him and his father of conspiring to marry her with the intent of establishing illicit relations and extorting money from her family.
In his defence, the man contended that the marriage was legally valid, which carried an implied presumption of consent for consensual sexual activities, and therefore, the acts in question could not be considered an offence under Section 377.
The judge pointed out an "inherent contradiction" in the wife's claims — while she accused the man of being sexually incapable, she simultaneously made allegations involving acts like oral sex.
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