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By Shaurya Mahajan
I. Introduction
Recently, the Madhya Pradesh High Court in Umang Singhar v. State of M.P held that a husband cannot be held liable for “unnatural”, non-consensual sexual offences with his wife. The court passed the judgement, pursuant to the petitioner’s quashing application filed under section 482 of Criminal Procedure code, which provides for the inherent power of the High Court to prevent abuse of court processes and ensure justice by way of quashing an FIR even after a chargesheet has been filed. The order was passed in light of the FIR lodged against the petitioner by his wife under section 377 of the Indian Penal Code (unnatural sexual offences). To reach this verdict, the court relied on the Supreme Court’s landmark judgment in Navtej Singh Johar v. Union of India, wherein it was held that consensual same-sex relationships do not constitute a criminal offence.
There also lies a similar petition before the Delhi High Court in Abdulla Khan v. Union of India, and the court has reserved the judgement. The case involves a batch of pleas seeking the criminalisation of marital rape. One of the pleas seeks a declaration from the court that husbands cannot be prosecuted under section 377. The court delinked this petition from the others on the grounds of being qualitatively different and heard it separately. Upon the court’s request, amicus curiae and Senior advocate Rebecca John assisted the court and said that acts such as anal sex no longer attracts section 377 of the IPC and that it is open to plead consent. The same standard is applicable to married couples, the only difference being in the existence of blanket consent in marriage.
Consent or the lack of it is an essential element for the application of section 377. While there is a general presumption of lack of consent, this is reversed to form an assumption of blanket consent wherein the parties share a marital relationship. A simple understanding of the law on consent in marriage and the binding nature of the Supreme Court’s judgement in Navtej make it clear that a husband cannot be held liable under the ambit of section 377. The question that then arises is why was an FIR filed and why was the court’s intervention necessary to avert a miscarriage of justice.
The present blog answers this very question and examines how section 377 has become a tool of coercion in matrimonial disputes. It also takes a look at how the addition of this section impacts bail proceedings at the trial court level. It delves into how there is a need for specific areas of law to be examined in light of the trickle-down effect of the SC’s landmark judgment in Navtej.
II. Present situation of law
Section 377 IPC deals with ‘unnatural non-consensual’ sexual offences and, as such, has two essential elements. These are – the lack of consent and the act of unnatural sexual activity.
A. Consent
Sections 375 and 376 of the Indian Penal Code deal with the offence of rape. Exception 2 to section 375 provides an exception for sexual relations between husband and wife, provided that the wife is above 15 years of age. This position was modified by the Supreme Court in Independent Thought v. Union of India and in consonance with the doctrines of purposive and harmonious construction, made applicable when the wife is above 18 years of age. This exception includes blanket consent to both parties in a marriage and does not leave room for determining consent in particular acts or circumstances. This effectively means that marital rape is not criminalised in the country, and as such, a husband cannot be held liable for sexual relations with his wife, and consent becomes immaterial in this regard. Therefore, there cannot be a lack of consent in a marital relationship as a marriage implies blanket consent under present law.
This position can be substantiated by examining the judgement of the Gujarat High Court in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat which noted that "as per the current legal position the wife cannot initiate proceedings against her lawfully wedded husband for the offence of rape punishable under Section 376 as the idea is that, by marriage a woman gives irrevocable consent to her husband to have sex with her any time he demands it”. The Bench however strongly stressed that marital rape is not merely a concept and stated that, “It is time to jettison the notion of 'implied consent' in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”
This notion of assumption of consent in marriage was first suggested in Sir Matthew Hale's Historia Placitorum Corono:
the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract. In other words, by consenting to marriage, a wife had given her body to her husband and also gave irrevocable consent to sexual intercourse with her husband.
Since then, it has become to be a widely accepted societal notion and thus become a part of the legal framework of the country.
Therefore, in the absence of criminalisation of marital rape, marriage carries with it the assumption and implication of consent, making it impossible for there to be a breach of consent.
B. Unnatural Sexual Activity
The Supreme Court, in its landmark judgment of Navtej Singh Johar v. Union of India, restricted the extent of ‘unnatural sexual offences’ as provided in section 377. The 5-Judge Constitution Bench held:—
Section 377 IPC, so far as it penalises any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any sexual activity with an animal, the said aspect of Section 377 is constitutional and shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.
This makes it clear that consensual sexual relationships of any kind between any two individuals fall outside the ambit of section 377. ‘Unnatural offences’ are thus restricted to acts of bestiality and non-consensual acts. Given the position of blanket consent in marital relationships in law, it follows that no sexual acts between husband and wife, both being above 18 years of age, attract the application of section 377.
III. Synthesis of elements
A synthesis of the essential elements required for the application of section 377, provides that since the existence of marriage assumes consent and all consensual relationships between humans fall outside the ambit of ‘unnatural’, thus, there is no possibility of prosecution of the husband for unnatural sexual offences committed against his wife. This synthesis was accepted and applied by the Madhya Pradesh High Court in its Umar Singhar ruling wherein it was held “As per the amended definition, if offender and victim are husband and wife then consent is immaterial and no offence under Section 375 is made out and as such there is no punishment under Section 376 of IPC”. This synthesis, as affirmed by the Madhya Pradesh High Court presents the correct position in law and requires to be upheld.
IV. Weaponising in Matrimonial Disputes
There is a growing trend of misuse of this section through weaponizing it in matrimonial disputes. The intent behind this weaponization can be an effort to secure justice and legal redress by aggrieved wife in the absence of a provision of marital rape or can just be to coerce the husband and his family for money and divorce. This follows the parallel of the much debated misuse of section 498A of IPC, noted by the Supreme Court in Arnesh Kumar v. State of Bihar. This misuse has been recently termed as “Legal Terrorism” by the Calcutta High Court in Swapan Kumar Das v. State of West Bengal. Whatever the intent behind it, this weaponization represents gross misuse and incorrect application of law and is antithetical to the ends of justice.
A. Lack of Statutory Exception
This is possible because unlike the provision for rape under section 375, there exists no exception no explicit statutory exception for marital relationships within section 377. As a result, it has been possible to innovatively invoke it to proceed against husbands who subject their wives to penetrative non-consensual sexual acts which, it could be argued, are unnatural. In the absence of the criminalisation of marital rape in the country women find alternative recourse by choosing to use the circuitous paths of employing laws with anachronistic language when they are essentially being raped. This also allows for the misuse of this section when the intention behind its invocation becomes ‘not too noble’. While the criminalisation of marital rape remains an imperative legal requirement in the country, it does not provide an excuse for the misapplication and misuse of the law.
The Chhattisgarh High Court in Dilip Pandey v. State of Chhattisgarh upheld a charge framed under section 377 in a revision petition filed before the court. The fact matrix in this case was of a matrimonial dispute and charges had been framed under sections 375, 376, 377 and 498A and 34 of the IPC. The court dismissed the charges under sections 375 and 376, basing its decision in exception 2 of section 375 which reads as - “sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape”.
The court upheld the charge under section 377 and in its ruling relied on several past decisions including the decision in Momina Begum v. Union of India given by the Gauhati high Court wherein it was held –
18. As a matter of fact, penetration of any object by the offender into the sex organ with an intention to derive sexual pleasure is sufficient to constitute the sexual connection against the order of nature necessary to constitute the offence under Section 377 of the I.P.C
Here the court failed to consider the overruling of this judgement by the Supreme Court in Navtej. Another decision, the court relied on, and perhaps the more relevant on for our argument, is the ruling in Nimeshbhai Bharatbhai Desai v. State of Gujarat. Here the court held:
a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the I.P.C. Section 377 of the I.P.C. does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under Section 377 of the I.P.C
The reasoning of the court here goes against the current position of law inferred from a synthesis of the Supreme court’s ruling in Navtej and section 375 Exception II, as explained above.
B. Parallel with section 498A
A parallel can be drawn here with the misuse of section 498A of the IPC. Section 498A deals with protecting women from cruelty, harassment and other offences. It has been termed an “anti-male” law, and several court judgements have widely recognised its misuse. As in many cases with section 498A, section 377 is applied in matrimonial disputes to create pressure on the husband and his family. These sections are also in many cases used simultaneously in marital dispute cases, with women choosing recourse under section 377 due to the dilution of section 498A by the Supreme Court and it being considered as a ‘minor gendered crime’. Nirvikar Jassal’s analysis found that for every hundred Section 377 cases, more than half are filled by women in the context of Section 498A.
The Delhi High Court’s judgement in Vinit Gupta v. State (NCT of Delhi) gives another illustration of how this section has come to be applied for harassing and coercing the husband and his family by the wife for money or other ulterior motives. The multiplicity of these instances is thus not limited to only certain states but is prevalent widely in the country.
C. Framing and Quashing of FIR
It appears to be a common practice that section 377 is added after the FIR has already been framed and filed by the police. The reasoning behind the addition of this section in the absence of any new facts in the matter is to prevent the accused from securing the relief of bail. Section 377 is a non-bailable offence, making it much harder for the accused to secure bail. This allows the wife to use the threat of arrest and police detention to harass the husband and his family and pressurise them for a more lucrative settlement. The Bombay High Court sought justification from the police for the subsequent addition of section 377 in a matrimonial dispute. The rationale offered by the state was on the lines of preventing the accused from securing bail.
Another aspect that reinforces the misuse of section 377 in matrimonial cases is that as per the precedent set by the Delhi High Court in Rifakat Ali & Ors v. State & Anr. in matrimonial cases where the dispute has been settled between the parties, the FIR for the offence made out under section 377 can be quashed. This allows women to use section 377 and, through its use, undertake ‘lawful’ criminal intimidation of the husband and his family, and once the matter has been settled between the parties, she can withdraw her complaint, and it would be as if it never was, a silver bullet in a manner of speaking.
D. Bail
Bail is a crucial aspect of our criminal justice system and is essential for upholding the fundamental legal principle of innocent until proven guilty. As per sections 436 – 439 Cr.Pc, it is a temporary release of a person from police custody on the condition that the accused will be available during the investigation. The addition of a section 377 charge makes the lower courts reluctant to grant bail to the accused. Due to this, the accused has to approach the High Court for Bail, and frequently, the High Court seamlessly grants bail to the accused (given the unsustainable nature of the charge as explained above). This is often the case when the charge is added after the police have filed the FIR. This is coupled with the fact that other charges commonly applied along with section 377 such as section 498A are considered to be ‘minor’ or not very serious offences. This effectively translates into section 377 acting as an obstruction in the person securing bail, when otherwise he would have secured bail without much difficulty (and that is the intention behind it as well). The case of Ramesh Grover v. State of Punjab clearly illustrates this. In this case, due to the addition of section 377 an in-camera bail hearing was conducted at the district court and the bail application was rejected. In appeal however, the High Court granted bail to the accused and cited the non - maintainability of section 377 in the present case as the basis(marital dispute).
V. Legal Terrorism and Way Ahead
While there exists an urgent and undeniable need for the criminalisation of marital rape, the usage of this archaic and colonial section as a bypass measure cannot be allowed to continue. Prosecution under section 377 cannot be allowed be an alternative to the criminalisation of marital rape. The misuse of this provision results in the miscarriage of justice and the targeting of the husband and his family members
The parallel to the misuse of section 498A of IPC despite being greatly different in the severity of the act and punishment is drawn to illustrate the effects of the misuse of this section by women. These laws result in the law being heavily biased in the women’s favour, allowing the women to coerce the husband and his family. These offences being non-bailable further complement this by placing a heavy physical and mental toll on the husband and his family. Section 498A meant to be a shield for the welfare of women, through such misuse ends up becoming a weapon used by wives against their husbands when the marriage breaks down. This misuse, thus runs contrary to the spirit and intention of the section to safeguard women and transforms it into a means of harassing husbands and securing economic advantages for themselves.
It is imperative that this misuse and misapplication of section 377 in matrimonial disputes is brought to an end. Using this section in marital disputes unleashes a kind of “legal terrorism” very similar to that unleashed by section 498A, on the husband and his family, leaving them with no choice but to agree to the wife’s demands. The question then is how?
The answer is to use a micro level or bottom up approach instead of using a top down approach. Police should not be allowed to charge the husband under section 377. This flows from the fact that given the status of the law on the matter, prima facie, there cannot be any liability for the husband against his wife. The judicial magistrate should ensure the same at the beginning stages of a trial. Simply put, charges should not be able to be framed for something that is not a crime in the first place.
VI. Conclusion
It is high time that this apparently existent and misused loophole in the law is plugged and the law becomes consistent on this matter. This also highlight the need for examination of niche areas of the law and the integration and harmonisation of the judgement in Navtej within the larger legal framework
While it is already implicit within the legal framework, there is a need for an explicit declaration by the court, clarifying the status of the law on the matter and preventing husbands from undue liability and false cases brought on by their estranged wives. This would prevent the misuse of the law and save the precious time of the court at the same time.
Shaurya Mahajan is a first-year law student at Jindal Global Law School. Interests include International Relations, Sociology, Economics, and History.
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