Husband Cannot Be Prosecuted Under Section 377

Summary

The Delhi High Court has decisively set aside an order that framed unnatural offence charges under Section 377 IPC against a husband, citing lack of evidence of non-consensual act and legal protection provided within marriage. The Court held that such charges cannot be sustained in a subsisting marital relationship without clear and specific allegations of non-consent. This verdict marks a significant legal correction against arbitrary use of serious penal provisions in matrimonial disputes.

Facts of the Case

• The petitioner (husband) challenged an order framing charges under Section 377 IPC.
• His wife alleged that he was impotent, and yet, during their honeymoon in Manali, oral sex had taken place.
• She also accused his family of assault and inappropriate conduct, and later claimed that her father-in-law had molested her.
• The FIR included charges under Sections 354, 354B, 376, 377, and 323 IPC.
• Sessions Court discharged all others but framed charges under Section 377 against the husband based on alleged oral sex.

Legal Provisions Involved

• Section 377 IPC: Criminalises carnal intercourse “against the order of nature.”
• Exception 2 to Section 375 IPC: Protects husbands from rape charges for sexual acts with their wives (if wife is above 15 years of age).
• Navtej Singh Johar v. Union of India (2018): Decriminalized consensual sexual acts between adults under Section 377 IPC.
• Section 164 CrPC: Complainant’s statement recorded during investigation.

Arguments of Petitioner and Respondent
Petitioner (Husband):

• The statement under Section 164 CrPC does not mention lack of consent.
• Sessions Court misread the complaint and presumed non-consensual sex.
• Under the current law, consensual sexual acts within marriage are not punishable.
• Exception 2 to Section 375 IPC protects such acts between husband and wife.

Respondent (State):

• The framing of charge does not require conclusive proof of lack of consent.
• It’s a matter of trial to determine whether the act was consensual.

Court’s Observations

• No explicit or implicit allegation of non-consent in the wife’s statement.
• Contradiction in wife’s claims: alleging husband’s impotence while also describing a sexual act.
• No prima facie evidence to suggest that oral sex occurred against her will.
• Sessions Court wrongly presumed lack of consent.
• The judgment referenced Supreme Court’s ruling in Navtej Singh Johar, and other High Court precedents, affirming that consensual sexual acts—even if “unnatural”—are not criminal under Section 377 IPC when between spouses.

Conclusion of the Judgment

• Framing of charges under Section 377 IPC against the husband was legally unsustainable.
• The Court quashed the Sessions Court order.
• Petition allowed; charges under Section 377 IPC set aside.

Comments from the Author of the Website

As someone who has seen how laws meant to protect can sometimes be misused, this judgment felt like a breath of fresh air. When I read through the facts, what struck me immediately was how easily a serious criminal charge like Section 377 was slapped on the husband—without even a clear allegation of non-consent.

I’ve followed enough cases to know that it’s not uncommon for one side to weaponise the legal system in emotionally charged matrimonial disputes. And often, it’s the husband who faces allegations that damage his reputation and carry the threat of imprisonment, based on statements that don’t hold up to legal scrutiny.

What this Court did right was insist on facts. It didn’t just accept the allegations at face value. It looked at the complainant’s statement and asked the most critical question: was there any clear mention of coercion or absence of consent? The answer was no. That matters—not just legally, but morally too.

This isn’t about taking sides—it’s about fairness. When the law is used as a sword instead of a shield, it affects real lives, real families. This ruling gives me hope that the system still values truth, and that men, too, can find justice when wrongfully accused.

Final Words
This judgment sets a powerful precedent against blindly accepting criminal charges in emotionally charged marital battles. The Court’s insistence on evidence, clarity, and legal consistency protects not just individual rights but also the sanctity of the judicial process itself.

For anyone facing similar situations—know this: the law still has space for truth, logic, and fairness. This is not just a win in one case; it’s a message—consent matters, and so does justice.

Read Complete Judgement Here