Delhi High Court Clarifies Section 377 Does Not Apply to Consensual Marital Acts
The Delhi High Court has delivered a landmark ruling, explicitly stating that Section 377 of the Indian Penal Code cannot be invoked to criminalize consensual oral or anal sexual acts between a husband and wife. Justice Swarana Kanta Sharma, in a detailed judgment, emphasized that any interpretation attempting to apply Section 377 in such a marital context would directly contradict the existing framework of criminal law and binding precedents set by the Supreme Court of India.
Case Background and Initial Proceedings
The ruling was issued on May 13, 2025, in response to a criminal revision petition filed by a husband challenging a Sessions Court order. That lower court had directed the husband to stand trial under Section 377 IPC, based on charges brought by his wife amidst ongoing matrimonial disputes. The case originated from a complaint lodged by the wife in February 2022, alleging acts of cruelty and sexual offences shortly after their marriage.
In her complaint, the wife claimed that on their wedding night, her husband was unable to consummate the marriage despite medication, and the situation persisted during their honeymoon. She further alleged that when she raised these issues with her in-laws, she was physically assaulted and later abandoned the matrimonial home. Months later, she accused her father-in-law of attempted rape and suggested the marriage itself was a scheme to extort money from her family.
An initial FIR was registered under provisions related to outraging modesty. During the investigation, the wife provided a statement under Section 164 of the Code of Criminal Procedure, wherein she recorded that she and her husband had engaged in oral intercourse during their honeymoon. Subsequently, a chargesheet was filed incorporating multiple provisions, including Section 377 IPC.
After hearing arguments, the Sessions Court discharged all other accused persons but upheld the charge under Section 377 IPC against the husband. The court treated the allegation of oral sex as "unnatural intercourse" and proceeded under the assumption that the act was non-consensual, despite the complainant never explicitly alleging a lack of consent.
High Court's Legal Analysis and Reasoning
In his petition before the High Court, the husband contended that the wife had never claimed lack of consent regarding the act in question. He argued that Section 377 was inapplicable within a matrimonial relationship, especially considering Exception 2 to Section 375 IPC, which provides marital immunity for certain sexual acts. He also challenged the Sessions Court's interpretation of the Section 164 statement and its reliance on baseless assumptions.
The State opposed the revision, maintaining that the charges were correctly framed and the matter should proceed to trial. However, Justice Sharma undertook a comprehensive examination of the evolution of sexual offence legislation in India, focusing particularly on the interplay between Sections 375 and 377 IPC before and after the 2013 amendments to criminal law.
The court noted that prior to 2013, Section 375 was limited to penile-vaginal intercourse, leaving other sexual acts like oral or anal sex potentially prosecutable under Section 377, irrespective of consent. The 2013 amendment significantly expanded the definition of rape under Section 375 to include oral and anal acts performed without consent, while retaining Exception 2. This exception states that sexual intercourse or sexual acts by a man with his own wife, provided she is above the prescribed age, do not constitute rape.
Justice Sharma placed substantial reliance on the Supreme Court's landmark 2018 judgment in Navtej Singh Johar v. Union of India, which read down Section 377 to decriminalize consensual sexual acts between adults in private. "Such an interpretation would be in line with the reasoning and observations of the Hon'ble Supreme Court in Navtej Singh Johar," Justice Sharma affirmed.
Citing the Supreme Court, Justice Sharma clarified that Section 377 continues to exist solely to criminalize three categories: non-consensual sexual acts, acts involving minors, and bestiality. Applying this logic, the High Court found it legally inconsistent to prosecute identical conduct under Section 377 when, between consenting adults, it has already been effectively decriminalized by the legislature, and within marriage, it is specifically protected.
Marital Consent and the Absence of a Prima Facie Case
A pivotal aspect of the ruling was the court's reiteration of the current legal position on marital consent. The court observed: "Exception 2 to Section 375 of IPC creates a legal presumption that a wife’s consent to sexual intercourse is implied by virtue of marriage." Justice Sharma further clarified: "As on date, the law does not recognize the concept of marital rape."
In this context, the court upheld that one cannot exclude a husband from the protection offered by Exception 2 to Section 375 while simultaneously prosecuting him under Section 377 for the same sexual acts. This would create an untenable legal contradiction.
Independently of the marital immunity issue, the High Court found that even on factual grounds, the charge could not stand. The court critically reviewed the wife's Section 164 statement, noting that while she mentioned oral intercourse during the honeymoon, she never alleged that the act was performed against her will or without her consent.
The judgment records: "What is conspicuously absent is any allegation that the act complained of was non-consensual or performed under duress." The Court also noted that the Sessions Court had erroneously assumed the absence of consent and framed charges accordingly, despite the complainant making no such claim.
"In the absence of such an averment, the essential ingredient of lack of consent – central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar between any two adults – is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met," the court stated.
Justice Sharma issued a cautionary note: "A charge cannot be framed merely on the basis of vague allegations or when the material on record does not disclose the essential ingredients of the alleged offence."
Conclusion and Disposition
Consequently, the Delhi High Court allowed the criminal revision petition and set aside the Sessions Court order directing the husband's trial under Section 377 IPC. The court held that no prima facie case was made out against the husband based on the available evidence and the applicable legal principles.
The ruling reinforces the legal principle that consensual sexual acts between spouses, regardless of their nature, do not attract criminal liability under Section 377, aligning with the Supreme Court's progressive interpretation in Navtej Singh Johar and the statutory protections embedded in Exception 2 to Section 375 IPC.
