Section 377 IPC not maintainable in Husband and Wife cases?
Misuse of Section 377 IPC in Matrimonial Disputes: An Examination Post-Navtej Singh Johar Judgment
In matrimonial disputes in India, it is not uncommon for wives to allege offenses under Section 377 of the Indian Penal Code (IPC) against their husbands and in-laws. This is often done to enhance the severity of charges and exert additional pressure, given that Section 377, which deals with “unnatural offenses,” carries a significantly higher punishment than Sections 498A (cruelty) and 406 (criminal breach of trust), where the maximum punishment is three years. However, the landmark judgment of the Supreme Court in Navtej Singh Johar vs. Union of India (2018) has significantly altered the landscape of Section 377, decriminalizing consensual homosexual acts and raising questions about the application of this section in matrimonial cases.
The Impact of the Navtej Singh Johar Judgment
The Navtej Singh Johar judgment was a watershed moment in Indian legal history, as the Supreme Court struck down the provisions of Section 377 IPC to the extent they criminalized consensual sexual conduct between adults. This decision effectively decriminalized consensual homosexual acts while retaining the provision for non-consensual acts and acts involving minors.
With the decriminalization of consensual acts, the misuse of Section 377 in matrimonial disputes has come under scrutiny. In many cases, wives have used this section to allege unnatural sexual offenses against their husbands to increase the severity of the charges, given that Section 377 prescribed up to 10 years of imprisonment. The aim often was to escalate the pressure on the husband and his family, hoping for a favorable settlement or other concessions.
Post-Navtej Scenario and Ongoing Cases
Despite the decriminalization of consensual acts, there remains ambiguity about the status of ongoing cases filed before the Navtej judgment. These cases, particularly those involving matrimonial disputes, often lack substantial medical evidence and rely heavily on allegations. The police, too, have historically treated these allegations under Section 377 in a manner similar to those under Sections 498A and 406, resulting in prolonged legal proceedings without significant outcomes.
Recent Judicial Pronouncements
Recent judgments from the Uttarakhand High Court and the Madhya Pradesh High Court have further clarified the legal position regarding Section 377 in the context of matrimonial disputes. These judgments have emphasized the concept of consent within marriage, drawing parallels with Section 375 IPC (rape).
Uttarakhand High Court Judgment
In a recent judgment, the Uttarakhand High Court underscored that under Section 375 IPC, there is an exception that presumes consent in marital relations. The court highlighted that any sexual act performed within the bounds of marriage, assuming there is consent, cannot be deemed as an offense, even if it involves acts that could otherwise be classified as “unnatural.” This presumption of consent within marriage significantly weakens the foundation of charges under Section 377 IPC in matrimonial disputes.
Madhya Pradesh High Court Judgment
Similarly, the Madhya Pradesh High Court in its recent ruling reaffirmed the principle that marital consent extends to all forms of sexual activities, provided they are consensual. The court noted that since marital rape is not recognized as an offense in India, any consensual sexual act within marriage, regardless of its nature, should not attract penal provisions under Section 377 IPC. This judgment has provided a strong basis for challenging and discharging frivolous Section 377 cases in matrimonial disputes.
Legal Recourse and Defense Strategies
Given these judicial pronouncements and the decriminalization by the Navtej Singh Johar judgment, individuals facing false allegations under Section 377 IPC in matrimonial disputes have a solid ground to seek discharge or quashing of such cases. The defense can argue that:
- Presumption of Consent: Highlight the presumption of consent in marital relations as per Section 375 IPC and recent high court judgments.
- Absence of Medical Evidence: Emphasize the lack of substantial medical evidence supporting the allegations.
- Navtej Singh Johar Judgment: Cite the Supreme Court’s decriminalization of consensual acts under Section 377, reinforcing that any consensual act within marriage cannot be penalized.
Conclusion
The misuse of Section 377 IPC in matrimonial disputes to enhance punishment and exert pressure on husbands has been a significant concern. However, the decriminalization of consensual acts by the Supreme Court in the Navtej Singh Johar case, coupled with recent high court judgments emphasizing marital consent, provides a robust framework for challenging such allegations. As the legal landscape continues to evolve, it is crucial for the judiciary to ensure that the misuse of penal provisions is curbed, upholding justice and fairness in matrimonial disputes.
Uttrakhand HC Judgement
MP HC Judgement
Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997
