The Delhi High Court has ruled that a husband cannot be punished under Section 377 of the Indian Penal Code (IPC) for engaging in anal or oral sex with his wife, Bar and Bench reported.
Justice Swarana Kanta Sharma said a husband is protected from Section 377 prosecution since the law presumes a wife's implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse, within a marital relationship.
The Delhi High Court has ruled that a husband cannot be punished under Section 377 of the Indian Penal Code (IPC) for engaging in anal or oral sex with his wife, Bar and Bench reported.
Justice Swarana Kanta Sharma said a husband is protected from Section 377 prosecution since the law presumes a wife's implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse, within a marital relationship.
The judge's remark suggests that within a marital relationship, a husband is generally protected from prosecution under Section 377 for sexual acts with his wife, as the law assumes the wife provides implied consent to sexual intercourse and other sexual acts, including anal or oral sex, by virtue of the 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, as quoted by Bar and Bench.
Therefore, in the context of a marital relationship, Section 377 of the IPC cannot be invoked to criminalise non-penile-vaginal intercourse between a husband and wife, the single judge clarified.
"Such an interpretation would be in line with the reasoning and observations of the Hon바카라˜ble Supreme Court in Navtej Singh Johar (judgement)," the Court said.
The bench arrived at this conclusion while quashing the lower court's order framing charges against a man under Section 377 of the Indian Penal Code.
His wife had complained that despite several attempts, the man failed to consummate the marriage and instead performed oral sex on her during the honeymoon.
She also accused her father-in-law of rape and her brother-in-law of assault.
While the trial court acquitted all the other accused, it held that a prima facie case was made out against the husband under Section 377.
However, the high court disagreed with the trial court's conclusion.
It reasoned that the woman never specifically alleged that the husband had oral sex with her without her consent.
Therefore, charges cannot be framed against her husband, as consensual oral or anal sex between any two adults in private is not a criminal offence.