–Dhruv Madan and Maya Sarmah
In Part I of this two-part post, we examined the shifting jurisprudence under Sections 375 and 377 IPC, through the cases of Imran Khan @ Ashok Ratna v. State of U.P. and Mohd. Mustafa & Ors. v. NCT of Delhi. Both these cases take a contradictory stance on whether the Marital Rape Exception (“MRE”) should be extended to non-consensual sex under Section 377 or not.
This Part analyses the Allahabad High Court’s decision in Imran Khan @ Ashok Ratna v. State of U.P., which restricts the application of MRE only to Section 375. It departs from the reasoning in Mohd. Mustafa & Ors. v. NCT of Delhi, by framing consent through sexual orientation and heteronormative generalizations. Part 1 provided a comparative critique of both judgments. This post builds on that to show that courts often recognize harm but are forced to rely on heteronormative reasoning to interpret rape. These frameworks distort the legal understanding of sexual autonomy and consent, raising a dichotomy upon the extending application of the MRE to Section 377 or not.
Judicial re-enforcement of a heteronormative framework of rape
Despite reading Section 375 and Section 377 separately, the Allahabad High Court fails to complete its progressive analysis by finding its holding on the nature of the sex as opposed to the wife’s lack of consent to it. The Court in Imran ignores the varying expressions of female sexuality and female pleasure and boldly holds:
’25…..it is clear that carnal sex, other than penile-vaginal intercourse, is not a natural orientation of sex for the majority of women’
This reflects the heteronormative conceptualization of sex in Indian Courts, rooting out of a presumption that penile-vaginal intercourse is both natural and universally acceptable for all women. In doing so, the Court re-enforces a one-dimensional model of sex which recognises only heteronormative sexuality for most women. Such a presumption is not only reductive but also reinforces the conceptual foundations of ‘natural’ sexual orientation and autonomy that the Court doctrinally attempts to protect. (¶19; Imran Khan v UP)
Despite citing the gender neutrality (¶24, Imran Khan v UP) and continual criminalisation of non-consensual sex under Section 377 as held under the Navtej judgement, the Court’s focus lies on the victim’s sexual orientation and not autonomy. Here, the framework of rape rests on the fact that anything other than procreative sex is not a ‘orientation for the majority of women’; and consequently, imposition of such unnatural sex on her forms an act of rape.
The Court’s assertion that ‘majority of women’ are ‘naturally oriented’ toward penile-vaginal intercourse effectively marginalises those whose sexual preferences or orientations fall outside the heteronormative idea of sex. This conceptualisation excludes the possibility that a woman’s sexual orientation may not include desire for such typical penile-vaginal intercourse at all. The Court’s statement relies on the parochial idea of ‘natural’ sex to equate a woman’s sexuality with procreative sex, thereby perpetuating patriarchal stereotypes about female sexual pleasure.
This interpretation reveals the anxiety of the Court, where it seeks to protect the sacred institution of marriage and the procreative, heterosexual sex within it. The Court is unconcerned with the wife’s lack of consent to the sexual activity; rather, the ‘unnatural sex’ is an affront to the patriarchal nature and heterosexual orientation of the institution of marriage.
Implications of A Heteronormative Judicial Lens
The jurisprudence for the protection of sexual autonomy, under such a framework, becomes conditional in such cases; it is extended only to acts labelled as non-normative, while normative acts are assumed to be inherently acceptable, regardless of individual desire or orientation or consent. By extension, such reasoning narrows the scope of consent and autonomy. It implies that consent is necessary only in the realm of ‘unnatural sexual acts,’ whereas so-called ‘typical intercourse’ is acceptable to all women. This construct not only undermines the foundational principle of bodily autonomy but also overlooks sexual orientations of women who may not find penile-vaginal intercourse desirable or compatible with their sexual orientation. Thus, despite its progressive overtures and citing the paragraphs of Navtej, which categorically declare that consent is the decisive factor to determine rape under Section 377, the Court fails to characterize rape on the foundation of lack of consent between husband and wife.
In contrast to the heteronormative reasoning deployed above, the Shashank Harsh Case, with identical case facts,embraced the idea that a married couple can engage in non-procreative sex –
“14.……………In other way, the unnatural offence has not been defined anywhere, but as has been considered by the Supreme Court in the case of Navtej Singh Johar that any intercourse, not for the purpose of procreation, is unnatural. But respectfully I find that when same act as per the definition of Section 375 is not an offence, then how it can be treated to be 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’”
By relying on the Navtej holding, the Court challenged the binaries of ‘natural’ and ‘unnatural’ sex and expanded the bounds of sexual activity within marriage. Despite attempting to assume a non-heteronormative stance, the Court still extended the MRE to Section 377 to conclude that all sexual acts – ‘natural’ or ‘unnatural’, when performed between husband and wife are always deemed consensual and natural –
“14……….the conjugal relationship between husband wife includes love that has intimacy, compassion and sacrifice, although it is difficult to understand the emotions of husband and wife who share intimate bond, but sexual pleasure is integral part of their relentless bonding with each other. Ergo, in my opinion, no barrier can be put in alpha and omega of sexual relationship between the husband and his wife. Thus, I find feasible that in view of amended definition of Section 375, offence of 377 between husband and wife has no place and as such it is not made out.”
When the Imran Khan decision is analyzed as a concept among past precedents such as the Shashank Harsh case, the motivations for basing its ruling upon wife’s sexual orientation as opposed to her consent become clearer, as it seems to be the only way to recognise rape within the marital sphere. This speaks to the larger MRE debate, that in order to create a framework of rape centred around the (non)-consent to sexual activity, the only way forward is the abolition of the MRE, as argued by a plethora of judges, lawyers and academics.
Conclusion
Both Imran Khan and Mohd. Mustafa judgments, despite their divergent holdings, ultimately bring the debate back to the MRE issue. While the Imran Khan judgement is rooted in heteronormativity, it may be considered a limited judicial attempt to acknowledge the possibility of rape within marriage despite its inadequate engagement with the question of consent. However, it is an exception to the aforementioned multitudes of judgments that extend the MRE to Section 377. This trend reveals a limited judicial imagination for interpretive creativity; there is no statutory requirement to apply the MRE to Section 377, and courts were under no obligation to do so. It was a legal lacuna that the Courts could have filled by relying on the Navtej decision and the gender-neutral consent it envisioned, breaking the barriers of natural and unnatural sex, and recognising rape within marriage, albeit in a limited sense. Furthermore, it is noteworthy that the Verma Committee Report, which served as the basis for the Criminal Amendment 2013, made no observations regarding the interaction between Section 375 and Section 377, leaving the issue open to judicial interpretation.
The legal conception of rape must be reoriented to centre around the presence or absence of consent to the sexual act. The only viable legal solution to the dilemma of Section 375 and Section 377 is to abolish the MRE entirely and completely move beyond archaic binaries of “natural” and “unnatural” sex. Rape must be understood as a violation of consent between individuals—irrespective of gender, sexual orientation, or marital status.
The authors are incoming penultimate-year law students at Jindal Global Law School, Sonipat.