NEW DELHI: The Delhi High Court on Wednesday said there was an anomaly and misalignment in the erstwhile Section 377 of the Indian Penal Code (IPC), which was decriminalised by the Supreme Court in 2018, and the rape law that protects a husband from prosecution for a non-consensual sexual act, including unnatural sex, with his wife.
The high court made the observation while hearing of a batch of pleas seeking to criminalise marital rape.
A bench of Justices Rajiv Shakdher and C Hari Shankar will continue to hear the submissions on Thursday.
During the hearing, Justice Shakdher said, “Before decriminalisation of Section 377 (punishment for unnatural sex) of the IPC, and I am talking about heterosexual couples, wasn’t there misalignment in section 375 and section 377. It is ironic that it continued in happy marriages and no one complained.”
The judge further said, “Apart from the fact that anal sex is part of sexual act and therefore if there is consent, that is not rape. But in section 377, prior to the Supreme Court judgment, that anomaly remained. Could he then say that there was consent?”
Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. On the court’s observation, amicus curiae and senior advocate Rebecca John said it no longer attracts section 377 of the IPC. It is open to plead consent.“When we look at an exception, we cannot let an absurdity to prevail,” she said.
Exception under IPC section 375s
Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.