Consensual sexual acts within marriage don’t attract Section 377: Delhi High Court

The Delhi high court has held that Section 377 of the Indian Penal Code cannot be used to criminalize consensual oral or anal sexual acts between a husband and wife, ruling that any such interpretation would be contrary to the present framework of criminal law and binding Supreme Court precedent.In deciding to set aside an order that had framed charges against a husband under the section 377 IPC, Justice Swarana Kanta Sharma made it clear that consensual sexual acts do not carry criminal liability under Section 377 where there is still a marital relationship and where consent is not expressly withheld.This ruling was issued on 13.05.2025 in a criminal revision petition that the husband had filed challenging an order of a Sessions Court that ordered the husband to stand trial on charges of engaging in unnatural intercourse, brought against him by his wife in the matrimonial disputes.Background of the Dispute The case started after the wife lodged a complaint claiming acts of cruelty and sexual offences after getting married to the petitioner in February 2022. She asserted that on the very first night, her husband was unable to consummate the marriage despite taking medication, and the situation did not improve even during their honeymoon.The wife further claimed that when she raised these concerns with her in- laws, she was beaten up and later abandoned the matrimonial home.

Some months later, she accused her father-in-law of attempt to rape her and claimed that the very marriage was a plan to extort money from her family. On the basis of these allegations, an FIR was first registered on the provisions of outraging modesty. In the investigation, the wife gave a statement under Section 164 of CrPC, where she recorded that she and her husband had engaged in oral intercourse during their honeymoon.

A chargesheet was later filed under multiple provisions, including Section 377 IPC.After hearing arguments on charge, the Sessions Court discharged all accused persons except the husband, holding that a charge under Section 377 IPC was made out against him. The Sessions Court treated the allegation of oral sex as “unnatural intercourse” and proceeded on the assumption that the act was non-consensual, despite no such allegation being made by the complainant.Challenging this order, the husband approached the high court contending that:

The State was against the revision saying it was about trial and the charges were made correctly.High Court examinationThe High Court engaged in an insightful discussion into the development of the sexual offence legislation with specific reference to the change in interaction between the Sections of 375 and 377 IPC, both prior and following the 2013 amendments in the criminal law.According to Justice Sharma, before the year 2013, Section 375 was limited to penile-vaginal intercourse, with other sexual behaviours (such as oral or anal sex) subject to prosecution under Section 377, regardless of consent.However, after the 2013 amendment, the definition of rape was substantially expanded. Section 375 now included oral and anal acts when performed without consent, while simultaneously retaining Exception 2, which provides that sexual intercourse or sexual acts by a man with his own wife (above the prescribed age) do not amount to rape.The Court placed substantial reliance on the ruling of the Supreme Court in the case of Navtej Singh Johar v. Union of India (2018), under which Section 377 of the act was read down to cover consensual sex between adults in privacy.“Such an interpretation would be in line with the reasoning and observations of the Hon'ble Supreme Court in Navtej Singh Johar (supra),” Justice Swarana Kanta Sharma said.Citing the Supreme Court, Justice Sharma said that Section 377 still continues to exist with the sole purpose of criminalizing:

Using this logic, the court found it legally inconsistent to prosecute the identical conduct committed by consenting adults under Section 375 which had already been decriminalized by the legislature and, in marriage, criminalize the same act under Section 377.A crucial aspect of the ruling was the court’s reiteration of the current legal position on marital consent.The court observed:“Exception 2 to Section 375 of IPC creates a legal presumption that a wife’s consent to sexual intercourse is implied by virtue of marriage.”Justice Swarana Kanata Sharma clarified that:“As on date, the law does not recognize the concept of marital rape.”In this regard, the court upheld that one could not exclude a husband as a beneficiary of the protection of Exception to Section 375 and simultaneously prosecuting him under Section 377 for the same sexual actsIndependently of the marital immunity issue, the High Court found that even on facts, the charge could not stand.

The court put a critical review on the statement given by the wife on Section 164 and observed that, although the wife said oral intercourse at the honeymoon, no one alleged that the act was done against her will or without her consent.The judgment records:“What is conspicuously absent is any allegation that the act complained of was non-consensual or performed under duress.”The Court also observed that the Sessions Court had wrongly assumed the absence of consent and has framed charges accordingly, although the complainant and had not made any such claim.“In the absence of such an averment, the essential ingredient of lack of consent – central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar between any two adults – is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met,” the court said.Justice Sharma further cautioned that:“A charge cannot be framed merely on the basis of vague allegations or when the material on record does not disclose the essential ingredients of the alleged offence.”Accordingly, the High Court allowed the revision petition and set aside the order directing trial of the husband under Section 377 IPC, holding that no prima facie case was made out.CRL.REV. P. 990/2024, CRL.M.A. 22619/2024SK vs THE STATE NCT OF DELHIFor Petitioner: Mohd. Mustafa, Mr. Ratnesh Tiwari, Ms. Arpita Biswas and Md. Maroof, AdvocatesFor Respondent: Mr. Rajkumar, APP for the State with SI Rakesh Kumar, P.S. Vijay Vihar.(Vatsal Chandra is a Delhi-based advocate practicing before the courts of Delhi NCR.)