Does The Marital Rape Exception Shield Husbands From Prosecution Under Section 377 IPC? A Legal Examination
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Introduction
Indian criminal law continues to grapple with unresolved tensions surrounding consent, marriage, and sexual autonomy. One such tension arises from the interaction between the marital rape exception under Section 375 of the Indian Penal Code (IPC) and the offence of “unnatural sex” under Section 377 IPC. Courts across the country have adopted conflicting approaches on whether a husband can be prosecuted under Section 377 for non-consensual sexual acts committed against his wife. This article examines the statutory framework, judicial reasoning, and constitutional implications of this controversy.
Statutory Framework
Section 375 IPC and the Marital Rape Exception
Section 375 IPC defines rape expansively after the Criminal Law (Amendment) Act, 2013, including penetrative acts beyond penile-vaginal intercourse. However, Exception 2 to Section 375 excludes sexual acts by a husband with his wife from the offence of rape, provided the wife is above the prescribed age.
Notably, this exception is limited to the offence of rape alone and does not expressly grant immunity from other criminal provisions.
Section 377 IPC
Section 377 criminalises non-consensual carnal intercourse “against the order of nature.” Although partially read down by the Supreme Court in Navtej Singh Johar v. Union of India (2018) to decriminalise consensual adult acts, the provision continues to apply to non-consensual sexual acts irrespective of the relationship between the parties.
Judicial Divergence on the Issue
Several High Courts have held that once the marital rape exception applies, a husband cannot be prosecuted under Section 377 for sexual acts committed against his wife. This reasoning is primarily based on the overlap between the expanded definition of rape under Section 375 and the conduct described under Section 377.
Conversely, other courts have rejected this approach, holding that Section 377 remains a distinct and independent offence, unaffected by exceptions embedded in Section 375.
Can An Exception Be Transposed Across Offences?
A fundamental principle of criminal law is that exceptions are offence-specific. An exception carved out within one penal provision cannot automatically be imported into another unless the legislature explicitly provides so.
Exception 2 to Section 375 merely states that certain conduct shall not amount to “rape.” It does not declare such conduct to be lawful, nor does it bar prosecution under other provisions that independently criminalise the same act.
Analogously, conduct excluded from the definition of murder under Section 300 may still constitute culpable homicide under Section 299. Thus, exclusion from one offence does not imply blanket immunity.
Doctrine of Implied Repeal: Is It Applicable?
Some courts have suggested that the post-2013 expansion of Section 375 has rendered Section 377 redundant in marital contexts. However, the doctrine of implied repeal is applied sparingly and only where two provisions are irreconcilably inconsistent.
Here, no such inconsistency exists. Section 375 addresses rape, while Section 377 addresses a different category of non-consensual sexual acts. The legislature’s decision to retain Section 377 even after amending Section 375 indicates an intention for both provisions to coexist.
Constitutional Considerations
Exempting husbands from prosecution under Section 377 solely on the basis of marital status raises serious constitutional concerns under Articles 14 and 21 of the Constitution. Sexual autonomy and bodily integrity do not dissolve upon marriage. Differential treatment based on marital status may fail the test of reasonable classification.
Furthermore, post-Navtej Singh Johar, Section 377 survives only as a provision penalising non-consensual acts. Interpreting marital status as an implied defence risks diluting the very purpose for which the provision remains on the statute book.
Current Legal Position
At present:
- Marital rape is not criminalised under Section 375 IPC.
- Section 377 IPC continues to apply to non-consensual sexual acts.
- There is no authoritative Supreme Court ruling conclusively settling whether Section 377 applies within marriage.
As a result, the legal position remains uncertain and dependent on jurisdictional interpretations.
Conclusion
The marital rape exception under Section 375 IPC cannot, by implication, be extended to Section 377 IPC. Each provision operates within its own statutory boundaries, and exceptions cannot be judicially transplanted across offences. Until Parliament clarifies the law or the Supreme Court settles the issue, conflicting interpretations will persist—leaving fundamental questions of consent, equality, and dignity unresolved within matrimonial relationships.
