An Update on the Section 375-377 Ambiguity Question

Guest Post by Abhinav Sekhri
The Indian Express recently reported that a District & Sessions Judge in Rewari, Haryana has referred a case to the Punjab & Haryana High Court. The issue highlighted seems identical to the one I discussed a few weeks back in a guest post with a colleague on this Blog. Can a prosecution stand under Section 377 IPC against a husband on allegations leveled by the wife, where those acts would in all probability be protected by the ‘marital rape’ exception to Section 375 IPC? We argued that a prosecution should be maintainable and the marital rape exception should not extend beyond the offence of rape.
The news item buttresses the points made in our post that after the decision in Koushal
there exists an uneasy ambiguity surrounding the position consent occupies for Section 377 IPC, despite it not being an ingredient for the offence. Readers may recall that the Supreme Court seemed to suggest that non-consensual sexual acts formed the basis of prosecutions under Section 377 IPC, only to pivot back to reminding us that consent and gender were irrelevant for the offence under Section 377 IPC. A clearer word on the issue of consent would have, perhaps,
nipped these petitions in the bud.
If both High Courts do not give similar opinions on the issue, whenever they do decide the cases, it will present the Supreme Court with a unique opportunity to revisit Koushal and finally clarify how must prosecutions proceed for the offence it decided to save.
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