Unnatural sex with wife not rape, consent immaterial: HC | Bhopal News - Times of India

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BHOPAL: Observing that

marital rape

is not an offence under IPC,

Madhya Pradesh HC

has ruled that

unnatural sex

with wife is not rape, and her consent is immaterial in such cases.

Justice G S Ahluwalia made the observation while quashing an FIR registered by an estranged wife against her husband under IPC sections 377 (unnatural sex) and 506 (criminal intimidation).

In his May 1 order, the judge referred to several judgments of the Supreme Court and high courts, and the definition of rape under section 375 of IPC, and stated that a husband engaging in anal sex with his wife did not amount to rape, even if it were non-consensual, as long as the wife was not below 15 years of age.

According to the husband's petition, the couple got married in May 2019, but the wife has been living at her parental house since Feb 2020. She filed a case of dowry harassment against her husband and in-laws, which is pending in court. In July 2022, the wife lodged another FIR accusing him of unnatural sex.

"The only question for consideration is whether a husband during the subsistence of marriage while residing together can be said to be guilty of marital rape… Section 375 exception 2 of IPC provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape," Justice Ahluwalia said.

The only exception to this provision is IPC section 376(B), where the sexual act with the wife occurs when they are living separately on account of judicial separation, the court said.

"When rape includes insertion of penis in the mouth, urethra or anus of a woman and if that act is committed with his wife, not below the age of 15 years, then consent of the wife becomes immaterial," the order says.

Referring to the amended definition of 'rape' under IPC section 375, the HC order said under the circumstances, absence of consent of wife for unnatural act loses its importance. "Marital rape has not been recognised so far," Justice Ahluwalia said, quashing the FIR and subsequent proceedings against the petitioner.