REDEFINING CONSENT WITHIN MARRIAGE: A LEGAL ANALYSIS OF UNNATURAL OFFENCES AND CRUELTY

1. Introduction

In Banti Jatav v. State of M.P (Misc Criminal Case No. 32576 of 2024) before Justice G.S. Ahluwalia of the Madhya Pradesh High Court, A Petition under Section 482 of the Code of Criminal Procedure for quashing of FIR, in Gwalior. The Accused was charged under offences punishable under Section 377, Section 323, Section 498A of IPC. The Applicant’s main submission is that the ingredients of the offence under Section 377 are not satisfied as per precedents and reading of the provision, in particular having regard to the accused being a husband within the confines of a valid marriage.

 

2. Factual Background

The Prosecution alleged that the Complainant-Respondent No.2 married to the Applicant on 02.05.2023 as per Hindu rites and ceremonies. At the time of marriage, her parents gave her Rs.5 lakhs, Household articles and a Bullet motorcycle. According to the Complainant/ Respondent No. 2, the Applicant had been indulging in unnatural sexual intercourse with her, since the day of their marriage, whenever he gave got drunk, as per Applicant own showing. She was assaulted and subjected to cruelty for resisting such acts.

Even after number of complaints made to Mahila Paramarsh Kendra and resorting police assistance, the Applicant is said to have not stopped his behavior. Thereafter, a case was lodged against the husband under Sections 377 (unnatural offences), 498A (cruelty) and 323 (voluntarily causing hurt) of the IPC.

The Applicant has filed an Application under Section 482 CrPC to quash the FIR and abated proceedings. On the basis that no offence under Section 377 IPC is made out as the incident is within the wedlock and hence no offence under Section 498A can sustain

 

3. Issues
4. Whether the act committed by a husband with his legally wedded wife during the subsistence of a valid marriage is considered an offence under Section 377 IPC?
5. Whether the act becomes punishable if there is absence of wife’s consent under Section 377?
6. Whether the act of assault and cruelty on resistance to unnatural sex will amount to cruelty under Section 498A of IPC?
7. Whether criminal proceedings under Section 482 CrPC can be quashed, either in part or in full?

 

4. Analysis

Applicability of Section 377 IPC [Unnatural Offences]

The Court referred to the case of Manish Sahu v. State of Madhya Pradesh, 2024 (Madhya Pradesh High Court) where it was explained that unnatural sex by husband with his wife would not constitute to be a rape in the prevailing definition of Section 375 IPC.

Section 375 IPC (Exception 2) provides that any sexual acts of a man with his lawful wife (not under 15 years of age) cannot be considered rape. The only known crime to punish marital rape is enshrined in Section 376B IPC and it becomes punishable in the event the couple is separated under a judgement of judicial separation. Therefore, even if unnatural sexual acts are committed in the subsistence of marriage, they would not reach within the ambit of Section 375.

In the case of Navtej Singh Johar v. Union of India (2018), the Supreme Court decriminalized sexual activity between same sex adults consenting under Section 377 IPC. But the Ruling pertained to voluntary acts involving adults, not the lack of consent involved in marital relations.

The Court emphasized that since marital rape is not legally recognized in India (except as stated in Section 376B), the absence of the consent of the wife during the continuance of marriage would still be legally irrelevant under Section 375 and loss of consent would, by the same analogy, become legally irrelevant also under Section 377.

In Independent Thought v. Union of India (2017), the Supreme Court invalidated the Exception 2 to Section 375 IPC as it pertained to minor wives (below 18 years). Therefore, the legal position remains that sexual intercourse or acts by a husband with his wife above 18 years is not considered rape or punishable under Section 377, even if unnatural or without consent.

Applicability of Section 498A IPC [Cruelty]

Section 498A IPC punishes the cruelty to a married woman by her husband or her relative, which is likely to result in suicide, or cause grave injury, physical or mental to her, and such cruelty, is done without the demand for dowry.

The Complainant had specifically claimed that in case she refused and denied unnatural sexual acts advanced by the Applicant, she was beaten and subjected to cruelty. The Court has held that the demand for dowry is not ‘sine qua non’ (essential condition) for cruelty as envisaged under Section 498A of IPC and If that is established, it has to be a willful conduct in such a way as is likely to drive the woman to commit suicide.

So, such acts as the forced unnatural sex on the woman against her consent and physical assault on her resisting also amounted to cruelty as implied in Section 498A of the IPC. The court held that the woman had made specific and serious accusations in the FIR, sufficient to warrant trial under Section 498A and Section 323 IPC.

Quashing under Section 482 CrPC [Inherent Powers of High Court]

High Court has inherent power under Section 482 CrPC to stop the abuse of the process of law. But quashing of an FIR or criminal proceedings can be done only when there is no prima facie even a charge, the Judge had observed.

In the present case, the allegations of cruelty and physical violence were held to be such that they could not be dismissed as being trivial and vague like it could have been done in an ordinary case. Section 377 in view of existing law and the background of marriage was held not to be valid.

Hence, the Application under Section 482 CrPC was partly allowed by quashing only the charge under Section 377 IPC. The FIR and also the proceedings under Sections 498A and 323 were held maintainable.

 

5. Conclusion

The High Court carefully examined the nature of allegation and applied the principles of law to take a view that the FIR registered against the petitioner was not in order. It concluded that:

• Section 377 IPC does not apply to sexual acts between a man with his lawful wife provided the wife is not under 18 years, is not judicially separated and there is no domestic violence.
• Non-consensual sex in such marital acts will not attract either Section 377 or Section 375 IPC as Indian law does not yet consider marital rape as an offence (except in a few instances).
• But allegations of physical assault and cruelty on resistance to unnatural sex squarely fall within the ambit of Section 498A and Section 323 IPC.
• Dowry demand is not a sine qua non for cruelty under Section 498A.
• Consequently, the FIR is quashed in part — in so far as it relates to Section 377 IPC — while upheld so far as Sections 498A and 323 IPC.

The Judgment reflects a careful balance between respecting marital privacy and ensuring protection against cruelty within marriage. It also indicates the legal position on marital rape and the narrow contours for quashing of criminal proceedings under Section 482 CrPC.

 

 

BENJAMIN THOMAS

4^TH YEAR LAW STUDENT,

SYMBIOSIS LAW SCHOOL, HYDERABAD

 

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