In this blog, we will be exploring the potential unintended consequences of legal reform. In 2013, we finally saw the reading down of Section 377 which criminalised ‘carnal intercourse against the order of nature’. This law was used to persecute the queer community in India, with cases being brought against those who engaged in consensual anal sex, among other things. The reading down means that now two adults can have sex in whatever manner they please and regardless of sexuality and gender as long as it is consensual. This was clearly a step towards justice for LGBTQ folk in the country but has it had an adverse effect on other minoritised groups—for example, has it harmed women’s rights?
Currently, marital rape is not a crime in India. Under Section 377, however, wives could open a case against their husbands for non-consensual anal sex. What recourse, if any, do victims of marital rape have now that Section 377 has been read down? Must they rely on other crimes – such as S498A (cruelty) or S373 (hurt) – which carry far smaller penalties? In this blog, I demonstrate that the Natvej case, which read down 377, has re-opened a legal avenue for women who suffer sexual abuse in their marriage. This is a promising step forward and demonstrates that legal reform and case law can move the law incrementally closer to justice for all.
I. How 377 Helped Married Women Claim Relief Against Sexual Abuse
To understand this, it is essential to begin with Section 375 of the Indian Penal Code (IPC). S 375 criminalises rape, which it defines as non-consensual sex of man with a woman. Prior to 2013, rape only applied to cases of non-consensual penile-vaginal penetration.[1] Therefore, for example, anal rape was not classified as rape at all. At this time, anal sex was punished under a different IPC section; S 377.[2] S 377 criminalised ‘carnal intercourse against the order of nature’ and anal sex traditionally fell into this understanding. The upshot was that although 377 de facto criminalised the queer community, it provided recourse against non-consensual sex of kinds other than penile-vaginal penetration. This recourse was available to everyone; straight, queer, married, unmarried.
As such, married women could not go under the rape provisions for relief but could file charges against their husbands under 377 if the rape they experienced also had certain ‘unnatural’ elements. For example, in cases of anal rape, or forced oral sex, etc.
II. The Expanded Definition of Rape Causes Confusion
In 2013, the definition of rape was expanded. This new definition covered a host of non-consensual sexual acts performed by a man on a woman in additional to penile-vaginal penetration. For example, non-consensual anal and oral sex was now included in the definition of rape. The marital rape exception was of course, retained. At the same time, S377 was read down in 2018 (Navtej). The cumulative effect was that a confusion started to permeate the law: what would happen in the case that, for example, a husband commits non-consensual anal rape on his wife? Earlier the wife had recourse under 377. Would she still?
There are two ways to answer this question, which has split the high courts since 2013.
Answer 1: Since 377 earlier covered what 375 did not, the expansion of 375 necessarily meant the shrinking of 377. Imagine sex acts migrating from 377 to 375. So, in applied terms, anal rape was initially covered by 377 but since 375 has been expanded to cover it, anal rape has migrated from 377 to 375 and is no longer a 377 crime. It is now exclusively a 375 crime. Why does that matter? It matters to married women. It matters to married women because crimes that are part of 375 such as anal rape, oral rape, rape by penetration of an object etc., are not crimes they can take their husbands to court for. This is because 375 crimes have a marital exception. The conclusion would be that married woman now have no remedy left under 377.[3]
Answer 2: The expansion of 375 does not really redefine the crimes and just because other kinds of rape are covered within 375 does not mean that they no longer part of 377. This is the right interpretation in my opinion. Logically speaking, there is no reason to believe that anal rape cannot be punished both as rape and as an unnatural sex act; these are two distinct crimes in the penal code and in law there has never been any logical prohibition on the same act being punished under two different heads. Plus, interpreting the law in this way would provide recourse to queer populations and married women. Therefore, married women can still file charges against their husbands under 377. [4]
III. How has Navtej Helped?
The Natvej judgement of 2018 helps support the second conclusion. This judgement states that any sex that is between consenting adults is natural and, conversely, the absence of consent makes the act unnatural. Therefore, although the judgement does not speak about marital rape directly, anal rape remains unnatural and punishable under 377. Criminality under 377 turns on consent and not on marriage. Indeed, high courts that have preferred Answer 2 have used this reading of Navtej to support the conclusion that wives still have remedy under 377 against anal rape.
Unfortunately, this avenue of redress is under threat thanks to the Bharatiya Nyaya Shanhita, 2024 (BNS), which came into effect on 1st of July ’24. All cases that began before this date will be able to use 377 as a source of remedy. Going forward, however, queer persons and married women will be deprived of this provision. This highlights the urgent need for legal reform to continue. The Supreme Court will doubtless keep these considerations in mind as it hears on the legality of the marital rape exception, so that ‘the long arc of history can bend toward justice’.
[1] Sakshi v Union of India Writ Petition (crl.) 33 of 1997
[2] Sakshi v Union of India Writ Petition (crl.) 33 of 1997
[3] Sanjeev Gupta vs. State of U.P. and Ors. (06.12.2023 – ALLHC) : MANU/UP/3987/2023; Mahendra Singh vs. The State of Madhya Pradesh (10.05.2024 – MPHC) : MANU/MP/1700/2024; Manish Sahu vs. State of Madhya Pradesh and Ors. (01.05.2024 – MPHC) : MANU/MP/1513/2024; Shashank Harsh and Ors. vs. The State of Madhya Pradesh and Ors. (28.05.2024 – MPHC) : MANU/MP/2023/2024
[4] Mohammad Mustafa vs. State of U.P. and Ors. (25.11.2019 – ALLHC) : MANU/UP/3566/2019; Nimeshbhai Bharatbhai Desai v. State of Gujarat R/Criminal Misc. Application Nos. 26957, 24342 of 2017 and R/Special Criminal Application No. 7083 of 2017; Dilip Pandey and Ors. vs. State of Chhattisgarh (23.08.2021 – CGHC) : MANU/CG/0634/2021