Unnatural Sex With Wife Not Rape, Her Consent Immaterial: High Court

The Madhya Pradesh High Court has decided that a man having unnatural intercourse with his wife does not constitute rape because marital rape is not recognized by Indian law and the woman’s consent in such instances becomes immaterial

The order was made on Wednesday, May 1 as the court dismissed FIR that a man’s wife had filed against him, alleging that he had unnatural sex with her multiple times.

A husband having anal intercourse with his wife, even if it’s not voluntary, won’t be considered rape, according to single-judge Gurpal Singh Ahluwalia, provided that the wife is not less than 15 years old.

“In view of the amended definition of ‘rape’ under Section 375 of IPC by which the insertion of penis in the anus of a woman has also been included in the definition of ‘rape’ and any sexual intercourse or sexual act by the husband with her wife not below the age of fifteen years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance. Marital rape has not been recognised so far,” the High Court said.

Justice GS Ahluwalia further said that since unnatural sex by a husband with his “legally wedded wife residing with him” is not an offence under Section 377 of the IPC, “no further deliberations are required as to whether FIR was lodged on the basis of frivolous allegations or not”.

The High Court did point out that the only exception to this rule would be found in Section 376B of the IPC, which states that any sexual act with a wife that occurs while they are living apart—whether as a result of a judicial separation or not—would be considered rape.

In the 2019 instance, the woman filed a formal complaint against her husband, claiming that on several occasions after their marriage, when she went back to the marital residence for the second time, he had unnatural with her.

The spouse then filed a motion to have the FIR quashed and challenged before the Madhya Pradesh High Court. He mentioned that having unnatural sex with his wife would not be considered a crime under Section 377 of the IPC.

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