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Chhattisgarh High Court Ruling and Section 377
Context:
In a significant ruling, the Chhattisgarh High Court has extended marital rape immunity to include Section 377 of the Indian Penal Code (IPC), which previously criminalised “unnatural sex.”
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- This decision effectively removes a crucial legal recourse for married women in cases of non-consensual sex within marriage, a concern that legal experts had previously raised following the omission of Section 377 from the Bharatiya Nyaya Sanhita (BNS).
Background on Marital Rape Exception
- Section 375 of the IPC, which defines and criminalises rape, includes a notable exception: non-consensual intercourse by a man ith his wife is not considered rape, provided she is 18 years or older.
- However, Section 377, which criminalised carnal intercourse “against the order of nature,” did not originally contain a similar exemption, as it was primarily intended to target homosexuality.
- Over the years, this provision was frequently invoked by married women to seek legal recourse against non-consensual sexual acts by their husbands.
Case Overview and High Court’s Ruling
- The case in question involved an appeal by a man convicted for the death of his wife in 2017.
- A lower court had found that the wife became ill and subsequently died due to a forced physical relationship, convicting the husband under Sections 375 (rape), 377, and 304 (culpable homicide not amounting to murder).
- However, the Chhattisgarh High Court reversed this conviction, ruling that the marital rape exception under Section 375 also applied to Section 377.
- The court emphasised that an amendment to expand the definition of rape was enacted in 2013, yet the marital rape exception was deliberately retained.
- Citing legal principles, the HC observed that when two provisions are inconsistent, the later one abrogates the earlier.
- It further relied on the Supreme Court’s 2018 judgment decriminalising homosexuality, which “read down” Section 377 but did not strike it down entirely.
- The ruling stated that if an unnatural offence is committed between consenting partners, Section 377 is not applicable.
- Consequently, the court concluded that if a husband engages in non-consensual unnatural sex with his wife, it does not constitute an offence under Section 377.
Legal and Social Implications of Section 377’s Omission from BNS
- Section 377’s omission from the BNS has raised concerns among legal experts, as it eliminates an avenue for protection against non-consensual sexual offences, particularly for men and LGBTQIA+ individuals.
- The provision was historically used to initiate legal proceedings in cases of marital sexual violence and other non-consensual acts that do not fall under traditional rape laws.
- A Parliamentary Standing Committee reviewing the BNS in 2023 highlighted that Section 377 remained relevant in cases of non-consensual carnal intercourse.
- The committee warned that its deletion would leave men, women, and transgender individuals without adequate protection against sexual crimes such as bestiality and other non-consensual acts.
- The BNS’s sexual offence provisions primarily focus on crimes against women and children, failing to recognise that men and LGBTQIA+ individuals can also be victims of such offences.
- Currently, the Transgender Persons (Protection of Rights) Act, 2019, broadly criminalises harm or injury to transgender persons but imposes a maximum punishment of only two years.
Legal Challenges and Ongoing Debates
- Efforts to reinstate Section 377 in some form continue.
- In 2024, Advocate Gantavya Gulati filed a Public Interest Litigation (PIL) before the Delhi High Court seeking the revival of Section 377.
- In August 2024, the Delhi High Court directed the central government to treat the plea as a representation and decide on it within six months.
- However, the Supreme Court dismissed a similar plea in October 2024, ruling that determining what constitutes an offence falls under the jurisdiction of Parliament, not the judiciary.
The Chhattisgarh High Court’s ruling further entrenches the marital rape exception by extending its scope to unnatural sexual acts, thereby eliminating a crucial legal avenue for survivors of marital sexual violence. As the debate continues in courts and legislative chambers, the future of legal protections against non-consensual sexual acts remains uncertain, underscoring the urgent need for comprehensive reforms in India’s sexual offence laws.
