‘Law doesn't recognise concept of marital rape': HC quashes Sec 377 case against husband
marital rape
,
Delhi High Court
has quashed an order directing prosecution of a man for performing "unnatural" sex with his wife.
The court noted Section 377 of IPC 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 plea 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 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," it said.
The high court noted the wife did not specifically allege if the act was performed against her will or without her consent.
"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," the court said.
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The top court in the Navtej verdict de-criminalised consensual sex among adults, including those from 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 added. PTI
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