Unnatural Sex With Wife Not Rape: HC Says Consent In This Case Is 'Immaterial'

Bhopal: In a case that could again ignite the debate of martial rape, the Madhya Pradesh High Court has ruled that unnatural sex with wife is not rape. It added that since marital rape is not an offence under Indian Penal Code, the concept of "consent" by wife in this case is "immaterial".

Referring to several judgments of the Supreme Court, High Courts and the definition of rape under section 375 of IPC, Justice GS Ahluwalia stated that a husband engaging in anal sex with his wife did not amount to rape, even if it were non-consensual, as long as the wife was not below 15 years of age.

He made the observation while dismissing an FIR registered by an estranged wife against her husband under IPC sections 377 (unnatural sex) and 506 (criminal intimidation), reported Times of India.

The order came on a plea of a man who said he got married in May 2019, but the wife has been living at her parental house since Feb 2020. She had filed a case of dowry harassment against her husband and in-laws, which is pending in court. Two years later in July 2022, she filed another FIR accusing her husband of unnatural sex.

"The only question for consideration is whether a husband during the subsistence of marriage while residing together can be said to be guilty of marital rape… Section 375 exception 2 of IPC provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape," Justice Ahluwalia said, quoted TOI.

The court added that the only exception to this provision is IPC section 376(B), where the sexual act with the wife occurs when they are living separately on account of judicial separation.

"When rape includes insertion of penis in the mouth, urethra or anus of a woman and if that act is committed with his wife, not below the age of 15 years, then consent of the wife becomes immaterial," the order read, reported TOI.

Mentioning about the amended definition of 'rape' under IPC section 375, the High Court noted that under the circumstances, absence of consent of wife for unnatural act loses its importance.

"Marital rape has not been recognised so far," Justice Ahluwalia said and quashed the FIR against the petitioner.