The Uttarakhand High Court observed that if an act between husband and wife is not punishable due to operation of Exception 2 to Section 375 IPC, the same act may not be an offence under Section 377 IPC.

In that context, the Bench of Justice Ravindra Maithani observed that, "Exception 2 to Section 375 IPC cannot be taken out from it while reading Section 377 IPC in relation to husband and wife. If an act between husband and wife is not punishable due to operation of Exception 2 to Section 375 IPC, the same act may not be an offence under Section 377 IPC."

In a similar context, it was further said that, "according to the prosecution the petitioner has committed anal sex with the respondent no.2 on multiple occasions. The petitioner is husband of the respondent no.2. The act alleged also falls within Section 375 IPC and by operation of Exception 2 to it, a husband cannot be held guilty under Section 375 IPC for such an act. In such a situation the provisions of Section 377 IPC cannot be invoked against the husband. Therefore, this Court is of the view that Section 377 IPC is not prima facie made out against the petitioner."

The petitioner challenged the charge sheet and summoning order dated 08.04.2019, issued by the FTC/Additional Sessions Judge/Special Judge (POCSO) Haridwar in Special Sessions Trial No.48 of 2019. The case involved charges under Section 377 IPC and Sections 11/12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), based on FIR No.97 of 2017 filed at Police Station Kotwali Roorkee, District Haridwar.

The case was initiated by an FIR lodged by respondent no.2 against the petitioner, her husband, alleging repeated instances of carnal intercourse against the order of nature, resulting in severe internal injuries and bleeding. Despite medical treatment and hospitalization, the petitioner continued these acts. The respondent no.2 also reported physical assaults and harassment, including showing inappropriate content to their child to coerce her. According to the prosecution, after marrying on 08.12.2010, the petitioner left for Germany, where he was later joined by respondent no.2. Due to ongoing harassment, she returned to India in October 2013. The petitioner’s abusive behavior continued in Roorkee after he took a position at IIT Roorkee in July 2015.

The petitioner’s counsel argued that the amended definition of rape under Section 375 IPC, which includes acts covered by Section 377 IPC, should not apply to a husband due to Exception 2 to Section 375 IPC. Additionally, the Supreme Court's decision in Navtej Singh Johar v. Union of India (2018) decriminalized consensual acts of adults in private, and therefore, the petitioner should not be charged under Section 377 IPC. They also questioned the Court’s jurisdiction, asserting that the acts in question occurred before the amendment of Section 375 IPC and outside the jurisdiction of Haridwar. Furthermore, they argued that the intent required under Section 11 of the POCSO Act was absent, as the actions were to pressure respondent no.2, not for sexual gratification.

In response, respondent no.2's counsel contended that there can be no informed consent for unnatural sex within a marriage. They emphasized that the amendments to Section 375 IPC were made to address the plight of sexual assault victims and should not render Section 377 IPC redundant. They asserted that Section 377 IPC is an independent offence without exceptions for husbands and highlighted that the Hindu Marriage Act, 1955, considers sodomy a ground for divorce, supporting the applicability of Section 377 IPC to husbands.

While holding no offence was made out under Section 377 IPC against the petitioner, the Court did observe that offence under Section 11 read with Section 12 of the Protection Of Children From Sexual Offences Act, 2012 was prima facie made out. In that context, it was observed that, "She has also stated that the applicant would urinate in front of the room. He would show his private part to the child. She has also stated that the petitioner would commit oral sex forcibly in front of the child. The child has also been examined under Section 164 of the Code. The child has stated that his father does Gandi Gandi Cheeze. He would show dirty videos. Here intent can be presumed under Section 30 of the POCSO Act."

Cause Title: Dr. Kirti Bhushan Mishra vs State of Uttarakhand and Anr.

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Uttarakhand High CourtJustice Ravindra MaithaniMarital Rape

Ananya Soni