The Court said the law presumes a wife’s implied consent for sexual intercourse and sexual acts including anal and oral sex in a marriage.
The Delhi High Court recently ruled that Section 377 of the Indian Penal Code (IPC), which penalizes unnatural sexual acts, cannot be used to prosecute a husband for engaging in anal or oral sex with his wife.
Justice Swarana Kanta Sharma observed that, within the legal framework, a husband is shielded from prosecution under Section 377 due to the presumption of implied consent by the wife to sexual intercourse and related acts—including anal and oral sex—within the bounds of marriage.
“Thus, in the considered opinion of this Court, there is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of Exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts (including anal or oral intercourse within a marital relationship),” the Court said.
The single-judge bench clarified that Section 377 of the IPC cannot be invoked to criminalize non-penile-vaginal sexual acts between a husband and wife when such acts occur within the confines of a marital relationship.
“Such an interpretation would be in line with the reasoning and observations of the Hon‘ble Supreme Court in Navtej Singh Johar (judgment),” the Court said.
The bench reached this conclusion while overturning a trial court order that had framed charges under Section 377 IPC against a man.
The case stemmed from a complaint filed by his wife, who alleged that although the husband did not consummate the marriage despite multiple attempts, he engaged in oral sex with her during their honeymoon. She also accused her father-in-law of rape and claimed that her brother-in-law physically assaulted her.
While the trial court discharged the other accused, it found that a prima facie case under Section 377 existed against the husband.
However, the High Court disagreed with this conclusion and set aside the charges. It noted that the wife had not specifically alleged that the husband engaged in oral sex without her consent.
As a result, charges could not be sustained against him, since consensual oral or anal intercourse between two adults in a private setting does not constitute a criminal offence.
“It is pertinent to note that the complainant and the petitioner herein are legally wedded to each other, and the allegations arise from a matrimonial dispute. Importantly, the complainant has not specifically alleged that the act of oral sex was performed against her will or without her consent,” the Court said.
The Court further noted that the woman’s allegations lacked specificity and that the available evidence failed to establish the essential ingredients of the alleged offence.
“In light of the above, and considering the material placed on record, this Court is of the considered opinion that no prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside,” the Bench ordered.
