Consensual sexual acts within marriage don’t attract Section 377: Delhi HC

The Delhi precocious court has held that Section 377 of the Indian Penal Code cannot beryllium utilized to criminalize consensual oral oregon anal intersexual acts betwixt a hubby and wife, ruling that immoderate specified mentation would beryllium contrary to the contiguous model of transgression instrumentality and binding Supreme Court precedent.In deciding to acceptable speech an bid that had framed charges against a hubby nether the conception 377 IPC, Justice Swarana Kanta Sharma made it wide that consensual intersexual acts bash not transportation transgression liability nether Section 377 wherever determination is inactive a marital narration and wherever consent is not expressly withheld.This ruling was issued connected 13.05.2025 successful a transgression revision petition that the hubby had filed challenging an bid of a Sessions Court that ordered the hubby to basal proceedings connected charges of engaging successful unnatural intercourse, brought against him by his woman successful the matrimonial disputes.Background of the Dispute The lawsuit started aft the woman lodged a ailment claiming acts of cruelty and intersexual offences aft getting joined to the petitioner successful February 2022. She asserted that connected the precise archetypal night, her hubby was incapable to consummate the matrimony contempt taking medication, and the concern did not amended adjacent during their honeymoon.The woman further claimed that erstwhile she raised these concerns with her in- laws, she was beaten up and aboriginal abandoned the matrimonial home.

Some months later, she accused her father-in-law of effort to rape her and claimed that the precise matrimony was a program to extort wealth from her family. On the ground of these allegations, an FIR was archetypal registered connected the provisions of outraging modesty. In the investigation, the woman gave a connection nether Section 164 of CrPC, wherever she recorded that she and her hubby had engaged successful oral intercourse during their honeymoon.

A chargesheet was aboriginal filed nether aggregate provisions, including Section 377 IPC.After proceeding arguments connected charge, the Sessions Court discharged each accused persons but the husband, holding that a complaint nether Section 377 IPC was made retired against him. The Sessions Court treated the allegation of oral enactment arsenic “unnatural intercourse” and proceeded connected the presumption that the enactment was non-consensual, contempt nary specified allegation being made by the complainant.Challenging this order, the hubby approached the precocious tribunal contending that:

The State was against the revision saying it was astir proceedings and the charges were made correctly.High Court examinationThe High Court engaged successful an insightful treatment into the improvement of the intersexual offence authorities with circumstantial notation to the alteration successful enactment betwixt the Sections of 375 and 377 IPC, some anterior and pursuing the 2013 amendments successful the transgression law.According to Justice Sharma, earlier the twelvemonth 2013, Section 375 was constricted to penile-vaginal intercourse, with different intersexual behaviours (such arsenic oral oregon anal sex) taxable to prosecution nether Section 377, careless of consent.However, aft the 2013 amendment, the explanation of rape was substantially expanded. Section 375 present included oral and anal acts erstwhile performed without consent, portion simultaneously retaining Exception 2, which provides that intersexual intercourse oregon intersexual acts by a antheral with his ain woman (above the prescribed age) bash not magnitude to rape.The Court placed important reliance connected the ruling of the Supreme Court successful the lawsuit of Navtej Singh Johar v. Union of India (2018), nether which Section 377 of the enactment was work down to screen consensual enactment betwixt adults successful privacy.“Such an mentation would beryllium successful enactment with the reasoning and observations of the Hon'ble Supreme Court successful Navtej Singh Johar (supra),” Justice Swarana Kanta Sharma said.Citing the Supreme Court, Justice Sharma said that Section 377 inactive continues to beryllium with the sole intent of criminalizing:

Using this logic, the tribunal recovered it legally inconsistent to prosecute the identical behaviour committed by consenting adults nether Section 375 which had already been decriminalized by the legislature and, successful marriage, criminalize the aforesaid enactment nether Section 377.A important facet of the ruling was the court’s reiteration of the existent ineligible presumption connected marital consent.The tribunal observed:“Exception 2 to Section 375 of IPC creates a ineligible presumption that a wife’s consent to intersexual intercourse is implied by virtuousness of marriage.”Justice Swarana Kanata Sharma clarified that:“As connected date, the instrumentality does not admit the conception of marital rape.”In this regard, the tribunal upheld that 1 could not exclude a hubby arsenic a beneficiary of the extortion of Exception to Section 375 and simultaneously prosecuting him nether Section 377 for the aforesaid intersexual actsIndependently of the marital immunity issue, the High Court recovered that adjacent connected facts, the complaint could not stand.

The tribunal enactment a captious reappraisal connected the connection fixed by the woman connected Section 164 and observed that, though the woman said oral intercourse astatine the honeymoon, nary 1 alleged that the enactment was done against her volition oregon without her consent.The judgement records:“What is conspicuously absent is immoderate allegation that the enactment complained of was non-consensual oregon performed nether duress.”The Court besides observed that the Sessions Court had wrongly assumed the lack of consent and has framed charges accordingly, though the complainant and had not made immoderate specified claim.“In the lack of specified an averment, the indispensable constituent of deficiency of consent – cardinal to constituting an offence nether Section 377 of IPC post-Navtej Singh Johar betwixt immoderate 2 adults – is intelligibly missing. Thus, determination is not lone a deficiency of prima facie case, but adjacent the threshold of beardown suspicion is not met,” the tribunal said.Justice Sharma further cautioned that:“A complaint cannot beryllium framed simply connected the ground of vague allegations oregon erstwhile the worldly connected grounds does not disclose the indispensable ingredients of the alleged offence.”Accordingly, the High Court allowed the revision petition and acceptable speech the bid directing proceedings of the hubby nether Section 377 IPC, holding that nary prima facie lawsuit was made out.CRL.REV. P. 990/2024, CRL.M.A. 22619/2024SK vs THE STATE NCT OF DELHIFor Petitioner: Mohd. Mustafa, Mr. Ratnesh Tiwari, Ms. Arpita Biswas and Md. Maroof, AdvocatesFor Respondent: Mr. Rajkumar, APP for the State with SI Rakesh Kumar, P.S. Vijay Vihar.(Vatsal Chandra is simply a Delhi-based advocator practicing earlier the courts of Delhi NCR.)