Can the Marital Rape Exception Immunize a Husband Under Section 377 IPC?

⚖️ The Core Question

A recent decision of the Madhya Pradesh High Court has revived a long-neglected constitutional and criminal law question:

Can the marital rape exception under Section 375 IPC be invoked to shield a husband from prosecution under Section 377 IPC for non-consensual “unnatural” sexual acts?

This question sits at the intersection of sexual autonomy, marital privilege, and statutory interpretation.

🧾 The Case at Hand

• Case: M.Cr.C. No. 54650/2023

• Allegations by wife:

  • Rape – Section 376 IPC

  • Unnatural offence – Section 377 IPC

  • Hurt – Section 323 IPC

  • Cruelty – Section 498A IPC

The FIR alleged non-consensual sexual acts, including acts characterised as “unnatural”.

🏛️ The MP High Court’s Ruling

The High Court:

• Quashed charges under Sections 376 and 377 IPC

• Relied heavily on Exception 2 to Section 375 IPC (the Marital Rape Exception – MRE)

🔑 Crucial Holding

Since a husband cannot be prosecuted for rape due to the MRE, he also cannot be prosecuted under Section 377 for the same acts.

📌 How the Court Reached This Conclusion

The Court reasoned that:

• After the 2013 Criminal Law Amendment, Section 375 now:

  • Covers all forms of penetrative sexual acts

  • Includes acts involving the vagina, anus, mouth, objects, and body parts

• These acts fully overlap with what was earlier prosecuted as “unnatural offences” under Section 377

• Therefore:

  • When rape itself is legally excluded due to marriage

  • Section 377 cannot be used as a backdoor prosecution

🧠 Judicial Trend Across High Courts

This reasoning is not isolated.

Similar conclusions have been reached by:

• Chhattisgarh High Court

• Delhi High Court

• Uttarakhand High Court

• Madhya Pradesh High Court

• Allahabad High Court

⚖️ Common Judicial Tools Used

• Doctrine of implied repeal

• Repugnancy theory

• View that Section 375 (post-2013) overrides Section 377 in marital contexts

🔍 High Courts’ Logic — Step by Step

1️⃣ Expanded Scope of Rape (Post-2013)

Section 375 now includes:

• Penetration of:

  • Vagina

  • Anus

  • Mouth

  • Urethra

• By:

  • Penis

  • Objects

  • Other body parts

• Includes oral and manipulative acts under clauses (a) to (d)

2️⃣ Exhaustive Overlap With Section 377

Acts earlier prosecuted as:

“Carnal intercourse against the order of nature”

are now explicitly included within Section 375.

3️⃣ No Residual Space for Section 377

According to this view:

There remains no sexual act between a man and a woman that falls under Section 377 without also falling under Section 375.

4️⃣ Effect of the Marital Rape Exception

Exception 2 to Section 375 states:

“Sexual intercourse or sexual acts by a man with his own wife is not rape.”

Result:

• Consent of the wife is legally irrelevant

• Criminal liability under Section 375 is barred

5️⃣ Reading Navtej Singh Johar

After Navtej Singh Johar:

• Section 377 survives only for non-consensual acts

• But courts hold:

  • If the act is legally immunised under Section 375 due to marriage

  • Section 377 cannot be independently revived

⚠️ The Unsettled Tension

This interpretation raises serious concerns:

• Does marital status nullify sexual autonomy?

• Can statutory overlap erase constitutional protections?

• Is the MRE being expanded beyond legislative intent?

The issue now transcends criminal law and enters the domain of:

• Article 14 (Equality)

• Article 21 (Bodily autonomy & dignity)

• Transformative constitutionalism

🏁 Why This Question Matters

This line of reasoning effectively means:

A husband may enjoy immunity for acts that would be criminal if committed by any other person.

Until the Supreme Court conclusively resolves:

• The scope of the MRE

• The relationship between Sections 375 and 377

• The constitutional validity of marital consent presumptions

…the law will continue to oscillate between formal legality and substantive justice.