Offence Of Unnatural Sex Now Part Of Definition Of Rape; Consent Is Immaterial During Subsistence Of Marriage: Madhya Pradesh HC
The Madhya Pradesh High Court observed that the offence of unnatural sex had been made part of the definition of rape, therefore, consent of the wife is immaterial during the subsistence of marriage.
The Court discharged a man accused under Section 377 of the IPC. It declined to quash the allegations against the husband under Section 498-A of the IPC, as the wife accused him of forcing her to have intercourse with his friend, leading to harassment and assault when she refused. The Court found a prima facie offence under Section 498-A of IPC against the husband and his family for harassment and dowry demands.
A Single Bench of Justice Prem Narayan Singh observed, “In the case at hand since the wife was residing with her husband during the subsistence of their marriage and as per amended definition of rape under Section 375 of IPC by which insertion of penis in the mouth of a woman has also been included in the definition of rape and any sexual intercourse or act, by the husband with his wife not below the age of fifteen years is not a rape, therefore, consent is immaterial. In these circumstances the allegations made in the FIR does not constitute offence under Section 377 of IPC.”
Advocate Sitwat Nabi represented the applicant, while GA H.S. Rathore appeared for the respondents.
The wife had accused the husband of “committing” unnatural sex with her which led to a mouth infection. She also alleged that she was compelled to abort her pregnancy and subjected to physical and verbal torture, including demands for dowry by her husband and his family.
The High Court reiterated the decision of a Co-ordinate Bench in Umang Singhar v. State of Madhya Pradesh (2023 SCC Onlie MP 3221) which held that unnatural sex between spouses was not an offence under Section 377 of the IPC.
“It is evident that word 'rape' under Section 375(a) of IPC includes penetration of penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or with any other person. Thus, the act of unnatural sex has been made a part of definition of "rape". section 375(a), (b), (c) & (d) of IPC includes all sorts of unnatural acts. Therefore, if a person penetrates his penis into the mouth, urethra or anus of a woman, would be guilty of committing rape,” the Court remarked.
The Bench observed that as per the amended definition of rape under Section 375 of IPC, which included the insertion of a penis in the mouth of a woman, any sexual intercourse or act by the husband with his wife, provided she was not below fifteen years of age, was not considered rape. Therefore, the Court concluded that consent was immaterial. Consequently, the Court held that the allegations in the FIR did not amount to an offence under Section 377 of the IPC against the husband.
“Now with regard to offence under Section 294 of IPC prima facie, there is no evidence available on record by which it can be ascertained that the accused persons have committed any obscene act in any public place. The said incidents have been occurred in the premises of the house which is surrounded by walls, hence offence under Section 294 of IPC is not made out against the petitioners,” the Court stated.
Accordingly, the High Court partly allowed the petition.
Cause Title: A & Ors. v. The State of Madhya Pradesh Station House Officer & Anr.
Appearance:
Applicants: Advocates Sitwat Nabi and Yash Vyas
Respondents: GA H.S. Rathore; Advocate Subodh Choudhary
