INDIA’S RAPE law does not recognise marital rape, but can a husband be penalised for having “unnatural” sex with his wife under Section 377 of the Indian Penal Code?

This question, and an apparent conflict between the amended rape law which describes anal sex as a “sexual act” and Section 377 which describes it as “unnatural sex”, has been raised by a district and sessions judge in Rewari, Haryana, who has marked a reference to the Punjab and Haryana High Court.

“When the scope of Section 375 IPC has been enlarged so as to encompass penile non-vaginal intercourse and a man committing such an act with his wife has been exempted from penal consequences irrespective of the fact whether the sexual act was consensual or not, to make the same act punishable under Section 377 IPC can, by no stretch of imagination, be said to be logical,” Jagdeep Jain, who is now posted at Yamunanagar, has written to the High Court.

The judge has expressed difficulty in deciding whether a man can be charged under Section 377 IPC for having “carnal intercourse against the course of nature” with his wife.

Expressing concern, the district judge has said that provisions of Section 377 IPC may lead to grave consequences. He has reasoned that a man and his wife may voluntarily indulge in anal sex, but differences may crop up between them after 10 years, and the wife may lodge an FIR alleging anal sex by her husband. “The offence under Section 377 IPC being punishable with imprisonment for life, there will be no limitation. The husband will have to face trial for none of his faults,” the judge has said.

The Rewari judge has written to the HC on the complaint filed by a woman against her husband 10 years after marriage.

She sought her husband to be booked for unnatural sex under Section 377.

The district judge is of the view that it was the duty of the courts to avoid a clash between two sections of the same Act.

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