.jpg?auto=format%2Ccompress&fmt=webp&width=720)
In a very shocking ruling which has raised serious concerns about the safety and dignity of wives, the Uttarakhand High Court in July, in Dr. Kirti Bhushan Mishra vs. State of Uttarakhand, held that a husband cannot be held guilty under Section 377 for non-consensual anal sex with his wife. It was observed that the exception to Section 375 of IPC provided that ‘sexual intercourse’ or ‘sexual acts’ by a man with his own wife is not rape even if it is non-consensual.
The court relied upon the judgment of the Hon’ble Supreme Court in Navtej Singh Johar wherein it was held that the offence of "unnatural" intercourse under S. 377 of IPC is not made out if done consensually. Thus, as consent is immaterial for sexual intercourse between husband and wife, the husband cannot be held guilty of anal sex under S. 377 IPC.
But the Court, we believe, missed the true language of the exception provided under S. 375 IPC. The High Court failed to observe that Section 375 IPC, now Section 63 in Bharatiya Nyaya Sanhita, 2023 (“BNS”), provided an exception to only penile-vaginal intercourse.
To understand this better, we have to trace the origin and the recent position of S. 375 and S. 377 IPC.
Why the Exception Only Relates to Penile and Vaginal Intercourse
(1) Before the amendment of 2013 –
Before 2013, the provisions wrt S. 375 IPC, stated that only penile-vaginal nonconsensual intercourse would constitute rape. All other acts of penetration would be covered under S. 377 IPC. So the exception provided under Section 375 IPC was only with respect to penile-vaginal intercourse.
“375. Rape. A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
First - Against her will.
Secondly - Without her consent.
……………
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
So, before 2013, in case of any non-penile-vaginal penetration, the perpetrators were to be punished under S. 377 IPC only. Even if we look at the precedents, the Hon’ble Supreme Court in Sakshi and Ors. vs. Union of India (UOI) and Ors. (Writ Petition (Criminal) No. 33 of 1997) analysed the position of Section 375 IPC (before 2013) and held as follows -
“18. The main question which requires consideration is whether by a process of judicial interpretation the provisions of Section 375 IPC can be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration within its ambit. Section 375 uses the expression "sexual intercourse" but the said expression has not been defined. The dictionary meaning of the word "sexual intercourse" is heterosexual intercourse involving penetration of the vagina by the penis……..
XXX
20. Sections 354, 375 and 377 IPC have come up for consideration before the superior courts of the country on innumerable occasions in a period of almost one and a half century. Only sexual intercourse, namely, heterosexual intercourse involving penetration of the vagina by the penis coupled with the explanation that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape has been held to come within the purview of Section 375 IPC.”
Thus, the words ‘sexual intercourse’ under Sec. 375 was held to criminalise only penile-vaginal intercourse. Exception 2 of Section 375, which uses the same term ‘sexual intercourse’ was capable of giving protection to only non-consensual penile-vaginal intercourse.
The liability for non-consensual non-penile-vaginal intercourse acts, such as anal/oral etc., would be attracted under Section 377 IPC which provided as follows: -
“377. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Surprisingly, there is no exception clause in the then Section 377 IPC. The absence of any exemption clause under Section 377 IPC shows that the legislature never wanted to exempt even the husbands against non-penile-vaginal intercourse. Had the legislature wanted to exempt husbands even for other penetrative sexual acts, it would have provided such an exemption clause even in Section 377 IPC. In fact, the act of making two distinct offences i.e., 375 IPC and 377 IPC clearly meant that the legislature wanted to keep penile-vaginal intercourse and non-penile-vaginal intercourse separate.
(2) After 2013 Amendment
It was only the Nirbhaya gangrape case that brought the 2013 amendment in Section 375 IPC. It replaced the term ‘sexual intercourse’ with several acts as mentioned under different subclauses. It provided as follows: -
Position after 2013
“375. Rape.—A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person;
or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
First.—Against her will.
Secondly.—Without her consent.
…..
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The legislature, intentionally, did not include all these acts under the term “sexual intercourse”. Most importantly, the language of the exception under S. 375 IPC had not changed except including ‘sexual acts’ which means acts such as touching the vagina, applying mouth to the vagina, anus, urethra etc. There is no addition of any kind of intercourse after the amendment. Therefore, the exception kept providing protection to only penile-vaginal intercourse. For the same reasons, the husbands were still being prosecuted under Section 377 IPC for non-consensual anal/oral sex.
(3) After Navtej Singh Johar case
In Navtej Singh Johar, the Hon’ble Supreme Court found that S. 375 IPC permitted all consensual penetrative acts such as oral/anal for heterosexuals whereas S. 377 IPC criminalises it irrespective of consent for homosexuals. Therefore, the discrimination was being committed only based on the sexual orientation of a person. Therefore, the Hon’ble SC held S. 377 to be inoperative only to the extent of consensual penetrative acts (all acts described under Section 375 IPC) between the adults.
So, the Navtej Singh Johar case only allowed consensual penetrative acts between all adults. It never provided an additional exception under S. 377 IPC to the husbands which was never there in the statute.
(4) After BNS, 2023
The legislature has not changed the language and therefore, the position remains the same (S. 63 in the BNS)
Female Autonomy Undermined by Non-Recognition of Marital Rape Laws.
However, it is a settled position that a wife is precluded from instituting proceedings against her husband for non-consensual penile-vaginal intercourse. This marital exemption from rape laws is rooted in the notion that, by virtue of marriage, a woman is deemed to have given irrevocable consent for sexual relations with her husband at any time he may demand.
The authors believe that personal intimacies and sexual relations constitute a fundamental aspect of individual self-expression. In consideration of the constitutional rights to privacy, dignity, and bodily integrity as envisaged under Article 21, it is imperative that no restrictions be imposed on an individual's autonomy to consent to or abstain from participating in any acts that constitute rape under S. 375 IPC.
We believe that the act of marriage does not imply ownership of the wife's body to her husband. Upon marriage, the wife does not relinquish her fundamental right to have complete control over her body, including the lawful ability to consent or withhold consent for sexual relations during the marriage. In cases where a husband is distressed by his wife's persistent refusal to participate in sexual activity, it is impermissible for him to resort to criminal force or coercion to compel her compliance.
Marriage does not grant the husbands, the right to engage in non-consensual sexual acts with their wives. Mutual love and selfless commitment are essential components of marriage, which only involves consensual sexual cooperation and not any form of sexual compulsion or imposition. All women, regardless of their marital status, must have their bodily autonomy protected by the law.
Absence of a parallel provision analogous to Section 377 under Bharatiya Nyaya Sanhita.
It is very unfortunate that S. 377 IPC finds no place in the BNS, 2023, resulting in a complete absence of any legal provisions akin to those previously contained in S. 377 IPC. Consequently, individuals, including men and transgender persons, who are subjected to non-consensual acts as defined under S. 375 IPC no longer have a legal remedy under the BNS laws. Additionally, the BNS does not criminalise sexual acts involving humans and animals. Most pertinently, now, the position after the BNS (01.07.2024) is that husbands cannot be prosecuted for committing any non-consensual acts mentioned under the S. 375 IPC (S. 63 in the BNS). The absence of Section 377 in the legal framework signifies a demonstrable indifference or possibly a lack of governmental commitment to safeguarding the welfare of individuals, including both men and transgender persons, who are victims of violence.
Conclusion
The Uttarakhand High Court's ruling in Dr. Kirti Bhushan Mishra vs. State of Uttarakhand represents a significant setback in the struggle for women's safety and dignity within marriage. By interpreting the exceptions under Section 375 IPC to shield non-consensual anal intercourse by a husband, the court has undermined the fundamental principles of bodily autonomy and consent.
Historically, the legal framework, both before and after the 2013 amendments, has clearly demarcated the boundaries of consensual and non-consensual acts, emphasising the importance of explicit consent. The Navtej Singh Johar ruling, while progressive in decriminalising consensual homosexual acts, did not alter the necessity of consent in heterosexual marital relationships.
The legislative omission of provisions analogous to Section 377 IPC in the Bharatiya Nyaya Sanhita, 2023, further exacerbates the issue by leaving a gap in legal recourse for victims of non-consensual acts. This legislative oversight indicates a troubling indifference towards protecting individuals, including men and transgender persons, from sexual violence.
Marriage should not, and must not, imply the forfeiture of a woman's right to consent. The legal system must evolve to recognise and rectify this grave injustice, ensuring that all individuals, regardless of marital status, retain their right to bodily autonomy and protection under the law. It is imperative that the legislature revisits these provisions to align them with constitutional values of privacy, dignity, and personal liberty, thereby reinforcing the principle that consent is paramount in all sexual relations.
(Ravi Singh Chhikara is a practicing advocate at the Delhi High Court. Vaishali Chauhan is a practising advocate at Hon’ble Supreme Court and Delhi High Court. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)