Marital Exception Shields Husband From Rape Charge Under Section 376, While Forced Unnatural Sex Can Still Amount To Cruelty Under Section 498A: MP High Court
Safiya Malik
The High Court of Madhya Pradesh Single Bench of Justice Rajesh Kumar Gupta has partly allowed a husband’s plea to quash an FIR and related proceedings filed by his wife alleging assault, abusive conduct and forced sexual acts, including alleged “unnatural” acts within marriage. The Court set aside the rape and Section 377 charges, holding that the express marital exception to rape bars prosecution of a husband for rape under Section 376 when the wife is an adult. It added that compelling an adult wife into unnatural sex may constitute cruelty under Section 498A. While granting relief on the rape-related counts, the Bench declined to quash the proceedings for alleged cruelty, hurt and obscene abuses, which will continue under Sections 498A, 323 and 294.
The petitioner (husband) filed a petition under Section 482 of the Code of Criminal Procedure seeking quashing of the charge-sheet and the cognizance order dated 25.11.2023 passed by the Judicial Magistrate First Class in relation to an FIR registered at Police Station Kotwali, District Morena for offences under Sections 498A, 376(2)(n), 377, 323 and 294 of the IPC.
As per the prosecution version recorded in the order, the parties married on 26.06.2022, and the wife’s parents allegedly gave Rs. 21 lakhs and 15 tola gold at the time of marriage. It was alleged that disputes arose thereafter and that on 01.03.2023, during a trip to Indore, the husband assaulted the wife and she reported the incident at Mahila Thana Padav, Gwalior, following which counselling took place and she returned to the matrimonial home. The FIR further alleged that the husband forced physical relations and committed “unnatural acts” against her will on multiple occasions, and that on 28.08.2023 he abused and assaulted her, after which she informed family members and was advised to report the matter.
In support of quashment, the husband relied on a prior settlement/“rajinama” dated 20.06.2023, stated that the wife later assaulted him and his family on 28.08.2023, and referred to a complaint made the same day by his father. He also stated that he submitted representations to the police on 01.09.2023 and 13.09.2023, filed a divorce petition under Section 13 of the Hindu Marriage Act on 06.09.2023, and relied on WhatsApp chats/photographs and the medical examination report noting no definite opinion regarding alleged “unnatural sex” and no visible injury signs. The State and the wife opposed the quashment prayer.
The Court identified the core question as: “Whether the offence of Section 377 IPC between husband and wife can be weighed parallel to the offence of rape as defined under section 375 IPC”.
On the interplay between Sections 375/376 and Section 377 in the marital context, the Court observed: “two things are common in the offence of Section 375 and Section 377 firstly the relationship between whom offence is committed i.e. husband and wife and secondly consent between the offender and victim. As per the amended definition, if offender and victim are husband and wife then consent is immaterial and no offence under Section 375 is made out and as such there is no punishment under Section 376 of IPC”. The Court further stated: “The offence between husband and wife is not made out under Section 375 as per the repeal made by way of amendment and there is repugnancy in the situation when everything is repealed under Section 375 then how offence under Section 377 would be attracted if it is committed between husband and wife”.
Applying these principles to the allegation of “unnatural acts” within marriage, the Court stated: “Here in this case, where the wife is not under age, sexual intercourse or sexual act by the husband with his wife cannot be termed as rape, even if alleged to be without consent as under the amended Section 375 IPC, the marital exception applies, making Section 376 and 377 offences not attracted in such cases.”
On how such conduct is to be viewed for other offences, the Court recorded: “But, this Court is also of the opinion that forced unnatural sex by a husband on his wife amounts to cruelty under Section 498A IPC, but cannot be prosecuted as rape under Section 376 IPC as in a Section 377 context (unnatural acts), the marital rape concept is not recognized under current law because of the Express marital exception in Section 375”.
The Court also noted regarding Section 377: “Section 377 of IPC is not well-equipped.” and “Unnatural offence has also not been defined anywhere.” It recorded that the Supreme Court “held if unnatural offence is done with consent then offence of Section 377 IPC is not made out.”
On the evidentiary position relating to the Section 377 allegation, the Court recorded: “relevant medical reports have not been collected and only on the oral submissions, the trial for the offence under Section 377 of the IPC has been commenced against the petitioner.” and “Even the medical examination report of the prosecutrix indicates nothing in respect of unnatural sex & no definite opinion was given by examining Doctor in respect of fellatio or buggery as no injury sings were visible or detected.”
On the allegations that remained for trial, the Court stated: “the validity of the aforesaid offences is required to be proved during trial before the appropriate court/s at appropriate stage.” and “this court has not drawn any view on the aforesaid offences.”
On the marital exception, the Court stated: “Exception 2 to Section 375 specifically says that sexual intercourse by a man with his own wife is not rape provided the wife is not under 18 years of age.” It recorded: “This Exception is commonly referred to as the marital rape exception under Indian law.” and “Because Section 376 IPC punishes rape as defined in Section 375, where the Exception applies, no offence under Section 376 can be made out.”
The Court directed: “Hence, considering overall facts and circumstances of the case, the instant petition is partly allowed to the extent that offence alleged against the petitioner under Sections 376(2)(n) and 377 of the IPC registered vide crime No.971/2023 is hereby quashed. However, the offence under the same crime number under Sections 323, 294 and 498-A is hereby maintained.
Advocates Representing the Parties:
For the Petitioners: Shri Harshit Sharma - Advocate
For the Respondents: Shri Satendra Singh Sikarwar - PP for the State; Shri Yogesh Singhal- Advocate.
Case Title: SM v The State of Madhya Pradesh And Others
Neutral Citation: NEUTRAL CITATION NO. 2026:MPHC-GWL:621
Case Number: MISC. CRIMINAL CASE No. 54650 of 2023
Bench: Justice Rajesh Kumar Gupta
