How women lose all options when the Chhattisgarh High Court extends the marital rape exemption to Section 377

The Chhattisgarh High Court in a landmark judgment said that the legal application for marital rape also applies to which says that "unnatural sex" is a crime under Section 377 of the Indian Penal Code (IPC).

“Rape” is an offence and criminal conduct under Section 375, but it does not apply to "sexual intercourse or sexual acts by a man with his own wife" once the wife reaches the age of majority (18 years old). But because Section 377 was drafted to outlaw homosexual acts, it doesn’t make that distinction. It prohibits “carnal intercourse against the order of nature with any man, woman, or animal.

High Court considering the man's appeal against his conviction in a case involving his wife's death in the year 2017. A trial court determined that the wife's forced physical relationship was the reason she became ill and eventually passed away. It found the man guilty of rape under section 375, culpable culpability under section 377, and 304.

The Bharatiya Nyaya Sanhita (BNS) no longer includes the IPC Section, which is frequently the only legal option available to married women who engage in non-consensual sex. Echoing the same worries expressed by legal experts when the BNS completely omitted the provision, the HC ruling effectively eliminates that recourse.

The High Court in its judgement said that the marital rape is an exception, provided under Section 375 of the IPC, which prohibits a man from being charged with non-consensual sex with his wife after she reached majority age. Additionally, it noted that although the amendment in 2013, the scope of definition of rape is expanded, the exception was considered. "If these two clauses are inconsistent with each other, then the two cannot stand together and earlier is abrogated by the latter," the court stated, citing a "well-settled principle of law."

The Center has filed an affidavit in support of keeping the marital rape exception in place, despite the fact that it is currently being challenged in the Supreme Court.

In light of the exception for marital rape, women have used Section 377 for non-consensual sex as well as provisions pertaining to domestic violence, etc., over the years. The maximum penalty under Section 377 is ten years in prison. The clause was used as a springboard to start the prosecution and gain some legal protection, even if it did not result in a conviction.

Why is it problematic that Section 377 is not included in BNS?

In the BNS, Section 377 has no equivalent. Many experts have stated that this is a problem since men and LGBTQIA+ people are left without any real protection against sexual offenses as a result of the law's repeal.

Section 377 remained applicable "in cases of non-consensual carnal intercourse with adults," according to a November 2023 report by a Parliamentary Standing Committee created to recommend changes to the BNS (prior to its enactment). It stated that "no provision for non-consensual sexual offense against male, female, transgender, and for bestiality has been made" when it was removed from the BNS.

As per the “The Transgender Persons (Protection of Rights) Act, 2019” is says that anyone who "endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person" or causes harm to such a person will be penalised. However, the punishment is not rigorous as is it only for 2 years imprisonment.