BHOPAL/JABALPUR: No case is made out under IPC section 377 (unnatural sex) between a husband and wife as there is no bar on them from going beyond conventional sex, Madhya Pradesh high court has ruled, while quashing an FIR filed against Congress MLA Umang Singhar by his wife, accusing him of indulging in unnatural sex.
Under the law, consent is not needed for sexual acts between a married couple, the HC said.
Naogaon police in MP’s Dhar district had registered a case against Singhar, a former minister, in November 2022 under IPC sections for rape, unnatural sex, obscenity, voluntarily causing hurt, cruelty and criminal intimidation on the basis of a complaint filed by his second wife. He moved an application in the MP/MLA special court in Indore for anticipatory bail, but it was turned down. Then, he moved MP high court, which granted him anticipatory bail in March 2023, and has now ordered quashing of the FIR.
Justice Sanjay Dwivedi, in his judgment, noted that the complainant and petitioner have admitted that they are wife and husband.
“…Sexual pleasure is an integral part of a husband and wife’s bonding with each other. Ergo, in my opinion, no barrier can be put in the alpha and omega of sexual relationship between the husband and his wife. Thus, in view of the amended definition of Section 375, offence of 377 between husband and wife has no place and as such it is not made out,” Justice Sanjay Dwivedi said in his judgment.
“As per the amended definition, if offender and victim are husband and wife, then consent is immaterial and no offence under section 375 is made out and as such there is no punishment under section 376 of IPC. For offence of 377, as has been laid down by the Supreme Court in Navtej Singh Johar, if there is consent, offence of Section 377 is not made out,” Justice Dwivedi said.
“Unnatural offence has not been defined anywhere, but as has been considered by the Supreme Court in the case of Navtej Singh Johar, any intercourse, not for the purpose of procreation, is unnatural. But respectfully, I find that when the same act as per the definition of section 375 is not an offence, then how can it be treated as an offence under Section 377 IPC. In my opinion, the relationship between the husband and wife cannot be confined to their sexual relationship only for the purpose of procreation, but if anything is done between them apart from the deemed natural sexual intercourse should not be defined as ‘unnatural’,” the judge said.
Sexual relationship between the husband and wife is the key to a happy connubial life and that cannot be restricted to the extent of sheer procreation, the HC order says. “If anything raises their longing towards each other, giving them pleasure and ascending their pleasure, then it is nothing uncustomary and cannot be considered unnatural,” Justice Dwivedi said.
He further said: “If sexual intercourse for procreation… is considered to be natural sex, and sexual relations of husband and wife are confined to that extent, then in case any husband or wife is not capable of procreation, then seemingly their relationship would become useless, but it does not happen.”
The petitioner (Singhar) is a tribal and the complainant knew that he was married, yet she married him as his second wife as per ‘Adivasi’ customs, the court pointed out. “Their relationship became estranged sometime after marriage. They filed complaints against each other. The FIR was lodged by the wife without disclosing any specific date, time and place of the alleged offence… Therefore, the act of the petitioner is not punitive for the offence under Sections 376(2)(n) and Section 377 of IPC. There is no allegation of any demand of dowry… The complaint, in my opinion, is a malicious prosecution filed by the complainant as there was a dispute between them,” the judge said while quashing the FIR against Singhar.
If you want to register your marriage in thane visit : https://marriageregistrationthane.com/court-marriage-registration-in-thane