–Dhruv Madan and Maya Sarmah
Introduction
The law on sexual offences in India has witnessed substantial doctrinal shifts, yet certain judicial interpretations remain anchored in outdated binaries. Despite reforms via the Criminal Law (Amendment) Act, 2013 and Navtej Singh Johar v. Union of India, Indian High Courts continue to inconsistently distinguish between ‘natural’ and ‘unnatural’ sex under Section 375 and Section 377 IPC to create artificial divides between ‘consent to sexual acts’ and ‘consent rooted in sexual orientation.’ The latter encompasses a judicial interpretation where an individual’s willingness to engage in certain sexual acts is presumed or denied based on their sexual orientation, rather than focusing on the presence or absence of consent to engage in intercourse. In such cases, the Court’s interpretation of rape primarily through the lens of sexual orientation, rather than consent, effectively nullifies the progressive changes introduced by the 2013 amendments and Navtej, thereby sidelining the non-heteronormative experiences of sexual violence.
Part I of this post analyses the incoherent and conflicting interpretations of Section 375 and Section 377 through the recent judgements of the Allahabad High Court and the Delhi High Court in the cases of Imran Khan @ Ashok Ratna v. State of U.P. and Mohd. Mustafa & Others v. NCT of Delhi, respectively. Both these cases involve allegations of non-consensual ‘unnatural sex’ made between a married couple and delve into the overarching Marital Rape Exception (“MRE”) debate. In Part II, the authors critique the Imran Khan judgment’s reliance on the right to heterosexual orientation as the basis for recognising unnatural offences within marriage, arguing that such a framework undermines the role of consent and sexual pleasure. They further interrogate which judicial reasoning continues to reproduce gender binaries and heteronormative structures, even as it aims to dismantle them.
The overarching scope of criminalisation under Section 377 and Section 375
Before the 2013 Amendment, Section 375 defined rape narrowly and restricted its scope to non-consensual peno-vaginal intercourse. On the other hand, Section 377 was introduced to criminalise all non-procreative sexual acts, irrespective of consent as ‘carnal intercourse against the order of nature.’ The two provisions thus operated in a complementary binary where Section 375 addressed violations within the scope of ‘natural’ sex without consent, while Section 377 regulated and penalised all acts deemed ‘unnatural’, irrespective of the presence of consent. [1] Together, they reinforced a rigid legal framework that institutionalised a particular sexual ideal, marginalising all other forms of sexual expression and limiting the law’s recognition of sexual harm to acts that disrupted this normative order.
However, post the 2013 Amendment, this complementary operation of Section 375 and Section 377 based on a heteronormative and procreative understanding of sex progressively lost its relevance. The Criminal Law (Amendment) Act, 2013 expanded the definition of rape within Section 375 to include penetrative and non-procreative acts such as oral, anal, sodomy and penetration by objects. Along with this, Navtej clarified that Victorian or moral classifications such as ‘natural’ or ‘unnatural’ cannot serve as the basis for criminalisation of sexual acts.[2]
The Supreme Court read down Section 377 to exclude consensual adult sexual conduct and rejected this rigid separation between Section 375 and Section 377, shifting away from regulating sexual acts based on their conformity to a heteronormative ideal.
The legal lacuna and dichotomy of criminalisation
It is in contradiction of this settled Navtej doctrine, that the Imran Khan decision emerges. Herein, the petitioner sought quashing of criminal proceedings initiated under, inter alia, Section 377 and Section 498A IPC, based on allegations by the wife that the husband had subjected her to non-consensual carnal intercourse. The central legal issue before the Court was whether forced anal sexual intercourse by a husband with his wife could constitute an offence under Section 377 IPC, in light of the MRE under Section 375 IPC. The High Court while disagreeing with past precedents, interpreted Section 377 and Section 375 separately to hold that an exception under Section 375 cannot statutorily transcend to Section 377 and interpreted Section 375 and Section 377 as mutually exclusive of each other.
The Allahabad High Court’s interpretation diverged from the consolidated jurisprudence of other High Courts, that had previously applied the MRE to Section 377, resulting in non-consensual ‘unnatural’ sex between a married couple not qualifying as a criminal offence. This approach can be seen in decisions such as in Manish Sahu v. The State and Shashank Harsh v. The State of Madhya Pradesh, where High Courts read the MRE expansively to shield husbands from prosecution under Section 377. In contrast, the Allahabad High Court founded its decision of recognising rape, on the wife’s right to her heterosexual orientation, (derived from the Navtej judgement) and held that,
“19…fundamental right not to give consent against the unnatural sex cannot be taken away. A woman despite being a wife also has individual right to particular sexual orientation and dignity.”
Thus, the Imran Khan decision added the new dimension of sexual orientation to the jurisprudence on Marital Rape under Section 377 to laudably recognise rape within marriage, in a limited way. However, the dilemma of Section 377 and Exception 2 to Section 375 further exacerbated when the Delhi High Court in Mohd. Mustafa juxtaposed the Allahabad Court decision within the same month.
In the Mustafa judgement, the wife alleged non-consummation of marriage between her and her husband along with an admission of oral sexual intercourse, as well as subsequent assaults by her in-laws. The allegations inter alia included physical assault by in-laws, and sexual assaults by father-in-law and brother-in-law. While the family members were discharged by the trial court, the husband was charged u/s. 377 for commission of non- consensual oral intercourse.
Hearing the appeal, the Delhi High Court reads Section 377 and Section 375 to complimentarily regulate sexual intercourse. Based on that, the Court extended MRE to include non-consensual sex under Section 377. The Delhi High Court reasoned that a legal act i.e. non-consensual oral sex between a married couple under Section 375, cannot be criminalised under Section 377. This would create an inconsistency that allowed for the prosecution of men and women for sexual acts never intended to fall within the ambit of sexual offences law under both the provisions (¶22). Thereafter, the court (¶24) analysed MRE to hold that –
“……it creates a legal presumption that a wife’s consent to sexual intercourse is implied by virtue of marriage.”
The problem arises here. The Court reads Sections 375 and 377 together and carries the presumption of consent under the MRE across both provisions based on its legislative intent. Accordingly, it held that:
“……there is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of Exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts (including anal or oral intercourse within a marital relationship). Therefore, in the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife.”
The amended terminology of Section 375 includes ‘sexual acts’ along with ‘sexual intercourse’ to expand its scope. It includes non-peno-vaginal acts like oral or anal sex in such contexts. In that sense, the Court’s reasoning loosely aligns with the legislative history, where the expanded definition of rape brought more acts within the law’s framework, while the MRE remained untouched.
In this case, the difficulty lies in how broadly the Court applies this presumption of consent. Statutorily, the language of Section 375 creates the MRE presumption only within the specific framework of rape. There is no legislative basis or direction to statutorily extend that presumption to Section 377, especially after the Navtej judgment, which reshaped the scope of Section 377. The judgement explicitly re-interprets Section 377 to criminalise non-consensual sex between any two individuals. The same can be seen in para 267 (Navtej Judgement).
“267. Thus analysed, Section 377 IPC, so far as it penalises any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 IPC is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between the individuals without the consent of any one of them would invite penal liability under Section 377 IPC.“
The Delhi High Court’s approach overlooks how Section 377 has changed post-Navtej, where the Supreme Court held that consent remains central to any sexual act, regardless of whether it falls within the narrow idea of ‘natural’ or ‘unnatural’ sex.
By needlessly transposing the MRE beyond Section 375, the Court stretches the presumption of consent to Section 377. This opens a legislative dichotomy for different High Courts to either apply or reject the MRE under Section 377, deepening the legal inconsistency across High Court jurisdictions in India.
Part II builds on this analysis by analysing how the Imran Khan decision, despite recognising rape within marriage still found its holding in heteronormative constructs, ignoring the vital element of consent within this dichotomous jurisprudence.
The authors are incoming penultimate-year law students at Jindal Global Law School, Sonipat.