22 Sep 2023 7:10 AM GMT
In a significant observation liable to add to the ongoing debate regarding the criminalisation of marital rape, the Madhya Pradesh High Court has observed that after the 2013 amendment to the definition of Section 375 IPC (Rape), there is no place for any unnatural offence (as per Section 377 IPC) to take place between a husband and wife.
The Court made this observation while quashing an FIR lodged against a sitting Member of the MP State Legislative Assembly by his wife alleging, inter alia, a commission of unnatural offence as per Section 377 of IPC.
The Court opined that when Section 375 IPC (as amended by the 2013 Amendment Act) includes all possible parts of penetration of the penis by a husband to his wife and when consent for such an act is immaterial, then there is no scope that offence of Section 377 IPC would be attracted where husband and wife are involved in sexual acts.
In this regard, the Court, perusing the definition of ‘rape’ as per Section 375, noted that Section 375 includes penetration of the penis in the parts of the body i.e. vagina, urethra or anus of a woman, and since, consent is not required when the sexual act happens between husband and wife, then any unnatural offence can not be made out in such cases.
In other words, the Court reasoned that in a given case of 'rape', if the 'offender' and victim are husband and wife, then consent is immaterial and hence, no offence under Section 375 is made out and as such the husband won't be liable for any punishment under Section 376 of IPC.
The Court further clarified that the act (including all possible parts of penetration of the penis by a husband vis-a-vis his wife) as per the definition of Section 375 is not an offence, then the same can also not be treated as an offence under Section 377 IPC.
In this regard, the Court opined that there is repugnancy in these two situations in light of the definition of Section 375 and the unnatural offence of Section 377.
Importantly, the Court also stressed that the relationship between the husband and wife cannot be confined to their sexual relationship only for the purpose of procreation, and therefore, if anything is done between them, apart from the deemed natural sexual intercourse, the same cannot be termed as ‘unnatural’.
Against this backdrop, the Court further opined that no barrier can be put in the alpha and omega of a sexual relationship between the husband and his wife and therefore, it held that in view of the amended definition of Section 375, the offence of 377 between husband and wife has no place and as such it is not made out.