Chhattisgarh HC Acquits Man Accused Of Unnatural Sex With Wife, Says S.377 IPC Would Be Repugnant Due To Exception 2 To S.375 IPC

The Chhattisgarh High Court has found Section 377, which provides punishment for unnatural offences, to be repugnant to Exception 2 of Section 375 of the IPC, which says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

While acquitting a husband from the charge of non-consensual unnatural sexual intercourse with his wife, the Single Bench of Justice Narendra Kumar Vyas observed –

“…it is quite vivid that the definition of rape as provided under Section 375 includes penetration of penis in the parts of the body i.e. vagina, urethra or anus of a woman for which consent is not required then unnatural sex cannot be made as unnatural offence between husband and wife, as such apparently, there is repugnancy in these two situations in the light of definition of Section 375 and unnatural offence of Section 377.”

Case Background

The appellant is the husband of the deceased-victim. In the night of 11.12.2017, the appellant committed unnatural sex with the victim against her will. It was alleged that the appellant inserted his hand in the 'anus' of the victim due to which the victim complained pain and subsequently, she was admitted to Hospital for treatment.

A report was made to the Police Station and an FIR under Section 377 IPC was registered against the appellant. Dying declaration of the victim was recorded by an Executive Magistrate on 11.12.2017 before whom she made a statement that due to forceful sexual intercourse by her husband, she became ill. Thereafter, she died on the same day.

The doctor, who conducted post-mortem examination over the dead body of the deceased, opined that two perforations on rectum of the victim were present and he opined the cause of death to be peritonitis and rectal perforation.

The trial Court after appreciating the evidence on record convicted the appellant for commission of offences under Sections 377 (unnatural offences), 376 (punishment for rape) and 304 (punishment for culpable homicide not amounting to murder) of the IPC and sentenced him to undergo RI for 10 years with default stipulations. Being aggrieved, he filed this criminal appeal before the High Court.

Court's Observations

In view of the aforesaid factual situation, Justice Vyas considered as to whether offence under Sections 376 and 377 of the IPC are attracted against the appellant, especially when the appellant and the victim were admittedly husband and wife.

While answering to this question, the Judge underlined the stipulations made under Exception 2 to Section 375 of IPC which originally provided that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

“Exception- 2 has been provided which speaks that sexual intercourse or sexual acts by a man with his own wife is not a rape and therefore if any unnatural sex as defined under section 377 is committed by the husband with his wife, then it can also not be treated to be an offence. It is quite vivid that Section 377 i.e. unnatural sex is not well-equipped and offender is not defined therein but body parts are well defined, which are also included in Section 375 i.e. carnal intercourse against the order of nature,” it held.

The Court observed that rape, as provided under Section 375, includes penetration of penis, any other part of the body or any object into the vagina, urethra or anus of a woman. Since a husband is exempted from commission of offence of rape under Exception 2 of Section 375, it said, he therefore cannot be held guilty for unnatural sex under Section 377 as well. Therefore, the Court was of the view that there is a 'repugnancy' in these two provisions.

Justice Vyas further questioned that if every sexual act between the husband and wife is exempted from deemed as 'rape', then how a husband can be prosecuted under Section 377 for commission of unnatural sex with his wife.

“It is quite vivid that when everything is repealed under Section 375 of IPC then how offence under Section 377 of IPC would be attracted if it is committed between husband and wife,” he exclaimed.

It was further held that if the provisions of latter enactment are so inconsistent or repugnant to the provisions of an earlier one then the two cannot stand together and earlier is abrogated by the latter.

“Thus, it is quite clear that at the same time, as per the definition of Section 375 of IPC, the offender is classified as a 'man'. Here in the present case, the appellant is a 'husband' and victim is a 'woman' and here she is a 'wife' and parts of the body which are used for carnal intercourse are also common, therefore, the offence between husband and wife cannot be made out under Section 375 IPC as per the repeal made by way of amendment and in view of repugnancy between both the sections,” it added.

Consequently, the Court was of the considered opinion that if the age of wife is not less than 15 years, then 'any sexual intercourse' or sexual act by the husband cannot be termed as rape under any circumstance and as such absence of consent of wife for unnatural act loses significance. Therefore, it conclusively held that the offences under Section 376 and 377 of the IPC against the appellant were not made out.

It is important to note that the Supreme Court in the landmark case of Independent Thought v. Union of India & Anr. (2017) had struck down Exception 2 to Section 375 of the IPC in so far as it immunized a husband from prosecution for sexual intercourse or sexual acts with his own wife who was between the age of 15 and 18.

It had held that the provision was arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution, apart from being inconsistent with the provisions of POCSO, which must prevail. Accordingly, it had increased the age threshold provided under the aforesaid provision and read down the Exception 2 to Section 375 of IPC as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.”

Thus, the observation of the High Court that any sexual intercourse by the husband with his wife not below the age of 15 years shall be covered under the exception, militates against the law laid down by the Apex Court in Independent Thought (supra), which had read down the exception to increase the threshold age of wife from 15 to 18 years. In other words, the top Court had stripped the husband of the immunity from prosecution in case of sexual intercourse with his wife below the age of 18.

Pertinently, the Apex Court has partially struck down Section 377 of IPC by its landmark ruling in the case of Navtej Singh Johar v. Union of India (2018). As a corollary, consensual homosexual relations have been decriminalized in the country. Furthermore, the Bharatiya Nyaya Sanhita (BNS) does not provide for a similar provision like Section 377 of IPC, criminalising unnatural offences.

Case Title: Gorakhnth Sharma v. State of Chhattisgarh

Case No: CRA No. 891 of 2019

Date of Judgment: February 10, 2025

Counsel for the Appellant: Mr. Raj Kumar Patil, Advocate

Counsel for the State: Mr. Pramod Shrivastava, Deputy Govt. Advocate

Citation: 2025 LiveLaw (Chh) 16

Click Here To Read/Download Order