The Uttarakhand High Court recently ruled that a husband cannot be convicted of rape under Section 375 of the Indian Penal Code (IPC) for engaging in anal sex with his wife.

Justice Ravindra Maithani observed that if a sexual act between a husband and wife is not considered a crime under Section 375 of the IPC, then the husband cannot be found guilty under Section 377 IPC for engaging in 'unnatural sex' with his wife.

Exception 2 to Section 375 IPC states that sexual acts between a man and his wife do not constitute rape, effectively implying that consent between a married couple is presumed.

Referring to the Supreme Court's judgment in Navtej Singh Johar v. Union of India, which held that sexual acts between consenting adults do not constitute 'unnatural offences' under Section 377 IPC, the Court remarked,

"The act alleged also falls within Section 375 IPC and by operation of Exception 2 to it, a husband cannot be held guilty under Section 375 IPC for such an act. In such a situation the provisions of Section 377 IPC cannot be invoked against the husband."

The Court was hearing an appeal by a man challenging a trial court order summoning him in a case filed by his wife. She alleged that he repeatedly engaged in anal intercourse against her will, causing severe injuries and bleeding that required treatment at several hospitals. Despite her injuries, she claimed, her husband continued with physical assaults and coercive sexual acts.

Additionally, it was alleged that the husband subjected their son to sexual harassment by showing the child explicit content.

Challenging the summons before the High Court, the husband's counsel argued that if two consenting adults engage in such acts privately, no offence is made out. It was further submitted that in the case of a married couple, sexual consent is considered informed and is not required on each occasion.

On the contrary, the wife's counsel argued that informed consent for unnatural sex cannot be assumed at the time of marriage and that no wife would consent to such acts. It was also contended that Section 377 IPC independently punishes the act of unnatural sex without exceptions for husbands, and under Section 13(2)(ii) of the Hindu Marriage Act, 1955, sodomy is a ground for divorce.

The Court agreed with the husband's argument that a man and a woman engaging in anal sex with their free consent in private is no offence under Section 377 IPC.

In the case of a husband and wife, both of whom are adults, the consent is considered informed and explicit. Therefore, no further consent is required, and no offence under Section 377 IPC is made out, the Court ruled.

While quashing the summons against the husband under Section 377 IPC, the Court upheld the summons against him for offences under Sections 11 (enticing a child for pornographic purposes) and 12 (sexual harassment) of the Protection of Children from Sexual Offences (POCSO) Act for allegedly sexually harassing his son.