The Delhi High Court recently held that Section 377 of the Indian Penal Code (IPC) criminalising unnatural sexual offences cannot be invoked to punish a husband for anal or oral sex with his wife.
Justice Swarana Kanta Sharma said a husband is protected from Section 377 prosecution since the law presumes a wife’s implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse, within a marital relationship.
“Thus, in the considered opinion of this Court, there is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of Exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts (including anal or oral intercourse within a marital relationship),” the Court said.
Therefore, in the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife, the single-judge made it clear.
