Non‑Recognition of Marital Rape Under Section 377 IPC Post‑Amendment of Section 375

Introduction

In the matter of Jaina Katlana D/O Bansilal Katlana v. The State of Madhya Pradesh & Another, Criminal Revision No. 1937 of 2024, the High Court of Madhya Pradesh was called upon to decide whether allegations of “unnatural sexual intercourse” by a husband with his wife during the subsistence of marriage could amount to an offence under Section 377 of the Indian Penal Code (IPC). The petitioner, Mrs. Jaina Katlana, challenged the order of the trial Court which had discharged her husband, Mr. Nikunj Shah, from the charge under Section 377 IPC. The core issues were:

Does the amended definition of “rape” in Section 375 IPC and the constitutional developments post‑Navtej Singh Johar render Section 377 inapplicable to sexual acts between a husband and wife?
Can “marital rape” or “unnatural intercourse” within a valid marriage sustain a charge under Section 377 IPC?

The revision petition was filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (CrPC), as well as Sections 438 & 442 of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS).

Summary of the Judgment

The High Court, after hearing arguments and perusing the record, dismissed the revision petition. It held that:

Section 377 IPC—which punishes “unnatural offences”—does not apply to consensual sexual acts between spouses, because the amended definition of “rape” under Section 375 IPC expressly covers forced or non‑consensual penile insertion, including anal intercourse.
The Supreme Court’s decision in Navtej Singh Johar v. Union of India (2018) and subsequent coordinate‑bench decisions in Madhya Pradesh have underscored that “marital rape” is not recognized under the IPC as it stands today.
Given the legal position that a husband’s non‑consensual act with his wife is not an offence under Section 377 IPC, the trial Court rightly discharged the accused husband.

Analysis

Precedents Cited

1. P. Vijayan v. State of Kerala, AIR 2010 SC 663: Emphasized that at the threshold stage, only prima facie materials are examined, but did not directly deal with marital contexts under Section 377 IPC.
2. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321: Struck down portions of Section 377 insofar as they criminalized consensual sexual acts between adults, paving the way for a broader understanding of sexual autonomy.
3. Coordinate‑bench decisions in Madhya Pradesh:

Smt. Meghna Agrawal v. Anurag Bagadiya (2022): Considered delay in lodging FIRs for alleged “unnatural sex” within marriage and applied principles from Rupali Devi v. State of U.P. (2019) on dowry cruelty.
Umang Singhar v. State of Madhya Pradesh (2023): Held that marital rape is not recognized under the IPC, in light of the amended Section 375 definition.
Manish Sahu v. State of Madhya Pradesh (2024): Reiterated that consensual or non‑consensual acts between husband and wife do not fall within Section 377 IPC post‑amendment.

Legal Reasoning

The Court’s reasoning turned on two pillars:

Amended Definition of Rape (Section 375 IPC): The 2013 amendment to Section 375 IPC expanded “rape” to include non‑consensual penile insertion in the anus. By doing so, Parliament intended to subsume acts formerly prosecuted under Section 377 into the rape definition—yet retained an exception for sexual intercourse by a man with his own wife if she is above fifteen.
Constitutional Pronouncements: In Navtej Singh Johar, the Supreme Court read down Section 377 IPC to exclude consensual adult sex. Subsequent judgments reaffirmed that sexual autonomy concerns in marriage do not attract Section 377 sanctions unless Parliament expressly provides for “marital rape.”

Thus, even non‑consensual “unnatural sex” by a husband with his wife cannot sustain a Section 377 charge—marital rape remains unrecognized.

Impact

The judgment:

Consolidates the legal position that Section 377 IPC has limited scope post‑amendment and post‑Johar, excluding intra‑marital acts.
Reinforces reliance on the amended Section 375 IPC for prosecuting non‑consensual anal intercourse, but excludes spouses.
Highlights a legislative gap: absence of recognition of marital rape under the IPC. Future judicial pronouncements may repeatedly call for statutory reform to protect married women.
Guides trial Courts in framing charges and admitting evidence in dowry and cruelty cases where “unnatural sex” is alleged.

Complex Concepts Simplified

Section 377 IPC – Historically criminalized “unnatural offences” (penal and anal intercourse). Post‑Johar, it applies only to non‑consensual acts, bestiality, and sexual exploitation of minors.
Section 375 IPC – Defines “rape.” The 2013 amendment expanded its scope to cover non‑consensual anal insertion by a man into a woman’s anus, except when the woman is the wife and above 15.
Marital Rape – Sexual intercourse by a husband without the wife’s consent. Not recognized as an offence under current IPC provisions—Parliament excluded it from Section 375’s ambit.
Prima Facie Discharge – At charge‑framing stage, the Court examines only whether the prosecution has laid down sufficient materials. If the conduct falls outside statutory offence definitions, discharge follows.

Conclusion

The High Court’s decision in Jaina Katlana v. State of Madhya Pradesh confirms that:

Marital rape is not an offence under Section 377 IPC, nor under the current Section 375 definition.
Courts must discharge accused spouses from Section 377 charges when the act occurs within a valid marriage.
There remains an urgent need for legislative action to criminalize marital rape and ensure comprehensive protection for wives against non‑consensual sexual violence.

This judgment underscores the evolving interplay between statutory amendment, constitutional interpretation, and the protection of individual autonomy, while exposing a critical lacuna in Indian criminal law concerning the rights of married women.