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

Bhopal: In a significant order, the Madhya Pradesh High Court has ruled that the act of a man engaging in unnatural sex with his wife doesn’t amount to rape.

marital rape is not recognised in Indian law and her consent in such cases becomes immaterial, the Madhya Pradesh High Court has ruled.

Quashing an FIR lodged by a woman accusing her husband of having unnatural sex with her multiple times, Justice Gurpal Singh Ahluwalia said that marital rape is not recognised in Indian law. Hence, a husband engaging in anal sex with his wife doesn’t amount to rape even if it’s non-consensual, provided the wife was not below 15 years.

“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 15 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 single-judge bench said.

Justice Ahluwalia further observed 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 only exception, the high court noted, in the case would be Section 376B of IPC where a sexual act with a wife would be rape if the same is committed during the time when they are living separately due to judicial separation or otherwise.

The case in question dates back to 2019, when the woman filed an FIR against her husband alleging that post marriage, when she came to her matrimonial house for the second time, he engaged in unnatural sexual acts with her on multiple occasions.

The husband moved Madhya Pradesh High Court seeking that the FIR be quashed.