'Unnatural' sex with wife does not constitute rape, consent immaterial, says MP HC: Here's what the law says

In a judgment recently, the Madhya Pradesh High Court ruled that “unnatural” sex with a wife does not constitute rape and her consent is immaterial in such cases.

Justice GS Ahluwalia stated that marital rape is not an offence under the IPC while quashing an FIR registered by an estranged wife against her husband under IPC sections 377 (unnatural sex) and 506 (criminal intimidation), according to a Times of India report.
The 1 May order said that when rape involves the insertion of the penis into the mouth, urethra, or anus of a woman, and if this act is committed with his wife, provided she is not below the age of 15 years, then the consent of the wife becomes irrelevant. The judge mentioned that marital rape has not been acknowledged thus far.

What constitutes ‘unnatural sex’

In India, “unnatural sex” typically refers to sexual activities considered to be against the order of nature, as defined by Section 377 of the Indian Penal Code (IPC). This has historically included acts like anal and oral sex even if they were consensual and involved adults.

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However, in a significant judgment in September 2018, the Supreme Court of India partially struck down Section 377. This means that consensual sexual acts between adults, regardless of their nature, are no longer considered criminal solely because they fall under the category of “unnatural sex”. The understanding of what constitutes “unnatural sex” has therefore changed reflecting a more inclusive and rights-based approach to sexual relationships.

The Navtej Singh Johar v. Union of India (2018) is a significant turning point, although it was primarily brought under the ambit of the rights of LGBTQ+ individuals in India. The case was brought forward by a group of petitioners, including Navtej Singh Johar, challenging the constitutionality of Section 377.

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Notably, on 3 July, 2013, Yukta Mookhey, a former Miss World, filed a case against her husband, parents-in-law and sisters-in-law. She accused them of cruelty under Section 498A and criminal breach of trust under Section 406, as well as alleging unnatural sex under Section 377 against her husband.

In India, the marital rape debate is still on

Marital rape entails non-consensual sexual intercourse imposed by a husband upon his wife through coercion, threats, physical violence or when she is unable to provide consent. The term “unwanted intercourse” encompasses any form of penetration, including anal, vaginal, or oral, carried out against her will or without her explicit consent.

Historically, marital rape was not always recognised as a criminal offence in many legal systems. However, attitudes and legal frameworks have evolved and many countries now consider marital rape to be a punishable offence, recognising that marriage does not grant one spouse ownership or control over the other’s body.

In September 2022, the Supreme Court of India made a historic legal acknowledgment by recognising marital rape. It declared that sexual assault perpetrated by a husband can constitute rape. This landmark decision was prompted by the court’s interpretation of the Medical Termination of Pregnancy (MTP) Act and its associated regulations, particularly regarding the differentiation in treatment between married and unmarried women in permitting abortions up to 24 weeks of pregnancy.

The verdict acknowledges marital rape albeit solely in the context of abortion. Nevertheless, it stands as a groundbreaking ruling in a nation where marital rape remains not criminalised.

During the delivery of a significant ruling on terminating pregnancies, Justice DY Chandrachud, who is now the Chief Justice of India, had stated that all women are entitled to safe and legal abortion. Additionally, he emphasized that under the MTP Act, marital rape falls within the definition of rape highlighting that sexual assault by husbands can constitute rape.

In the case of State of Karnataka v. Krishnappa, the Supreme Court ruled that sexual assault not only violates an individual’s right to privacy and the sanctity of their body but also constitutes a demeaning act, especially when perpetrated against women. In the case of Suchita Srivastava v. Chandigarh Administration, the Supreme Court drew parallels between the freedom to make decisions regarding sexual activity and the principles of privacy, personal autonomy and dignity enshrined in Article 21 of the Constitution. It emphasized the importance of upholding physical integrity alongside these fundamental rights.

However, there are inconsistencies as well.

Section 375 of the Indian Penal Code (IPC) defines rape as any non-consensual sexual intercourse with a woman. However, Exception 2 to Section 375 specifically excludes unwilling sexual intercourse between a husband and a wife over the age of 15 from the definition of “rape” under Section 375. Consequently, such acts are shielded from prosecution. Be that as it may, as per the Section 376B of the Indian Penal Code, if a man engages in sexual intercourse with his estranged wife without her consent, he can face legal consequences. The law stipulates that the offender may be subjected to imprisonment for a period ranging from two to seven years.

Striving for clarity

The recent Madhya Pradesh High Court ruling highlights the ongoing complexities in handling the legal tenability of marital rapes — as to whether they exist or not. It shows the need for clearer legal guidelines that match changing societal views on consent and sexual freedom.