The Court reasoned that the act may not fall under the definition rape but is a punishable offence under Section 377 IPC.
The Allahabad High Court has held that a husband’s non-consensual engagement in unnatural sexual acts with his wife, even if she is over 18 years of age, constitutes a punishable offence under Section 377 of the Indian Penal Code (IPC) [Imran Khan @ Ashok Ratna v. State of UP and Another].
Justice Arun Kumar Singh Deshwal observed that sexual acts other than penile-vaginal intercourse are generally not considered natural for most women and therefore cannot be imposed by a husband without his wife’s consent.
The Court clarified that although such conduct does not meet the definition of rape under Section 375 IPC, it is still criminalised under Section 377 as an unnatural sexual offence.
“Given the above analysis, it is clear that carnal sex, other than penile-vaginal intercourse is not a natural orientation of sex for the majority of women, therefore the same cannot be done by the husband, even with his wife without her consent. Therefore, this court holds that unnatural sexual intercourse by a man with his own wife without her consent, even if she is above 18 years, would be punishable u/s 377 IPC though that may not be rape as per Section 375 IPC,” the single-judge stated.
In arriving at its decision, the Allahabad High Court diverged from the view taken by the Madhya Pradesh High Court, which had previously ruled that unnatural sex by a husband with his wife, if she is over 18 years of age, does not constitute rape under Section 375 of the IPC and, consequently, cannot be prosecuted as an offence under Section 377 either.
“A wife may be above 18 years but as an individual identity she has a choice for sexual orientation that has to be protected, and merely because she is a wife of a man, her fundamental right not to give consent against the unnatural sex cannot be taken away. A woman despite being a wife also has individual right to particular sexual orientation and dignity,” Justice Deshwal reasoned.
Sex, other than penile-vaginal intercourse is not a natural orientation of sex for the majority of women and the same cannot be done by the husband, even with his wife without her consent.
Allahabad High Court
The Bench made these observations while hearing a petition filed by Imran Khan alias Ashok Ratna, who was challenging criminal proceedings initiated against him in Prayagraj district under Sections 498A (cruelty to wife), 323 (voluntarily causing hurt), 504 (intentional insult), 506 (criminal intimidation), 377 (unnatural offences) of the IPC, along with certain provisions of the Dowry Prohibition Act.
The petitioner contended that Section 377 of the IPC should not apply, as the alleged act involved his legally wedded wife.
However, the Bench did not find merit in the arguments and proceeded to dismiss the petition.
“In view of the above discussion, the submission of learned counsel for the applicant that no offence u/s 377 IPC is made out against the applicant is misconceived because the unnatural intercourse committed by the applicant upon the opposite party no.2 was against her will,” the Court said.
A woman despite being a wife also has individual right to particular sexual orientation and dignity.
Allahabad High Court
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