The Delhi High Court has ruled that Section 377 of the Indian Penal Code (IPC), which criminalises unnatural sexual acts, cannot be invoked against a husband for oral or anal sex with his wife, provided there is no allegation of lack of consent.

Justice Swarana Kanta Sharma, delivering the judgment, held that within a marital relationship, the law presumes implied consent for sexual intercourse, including non-penile-vaginal acts. This protection flows from Exception 2 to Section 375 IPC, which continues to shield a husband from rape prosecution in such contexts.

“There is no basis to assume that a husband would not be protected from prosecution under Section 377 IPC, in view of Exception 2 to Section 375 IPC,” the Court observed, adding that this interpretation aligns with the Supreme Court’s reasoning in Navtej Singh Johar.

The ruling came while setting aside a trial court order that had framed charges under Section 377 IPC against a man based on a complaint by his wife. She had alleged that, although their marriage was never consummated, the husband engaged in oral sex during their honeymoon. Additional allegations of rape and assault were made against other family members, but they were discharged by the trial court.

While the trial court found a prima facie case under Section 377 against the husband, the High Court disagreed. It noted that:

• The complainant never explicitly claimed the act was non-consensual.

• The couple were legally married, and the dispute stemmed from matrimonial discord.

• The allegations were vague, and evidence did not support the offence charged.

“Consensual oral or anal sex between adults in private is not a criminal offence,” the Court reiterated.

Accordingly, the Court concluded that no prima facie case under Section 377 IPC was made out and quashed the trial court’s order framing charges.

Counsel for the petitioner included Mohd Mustafa, Ratnesh Tiwari, Arpita Biswas, and Maroof. Additional Public Prosecutor Rajkumar represented the State.