Why Section 377 fails against a husband when the wife is 18 or above.

Two shots, one marriage, and the question that split a conviction

Sanjeev Gupta married the prosecutrix in July 2012. Within weeks, she alleged he demanded a Fortuner car and Rs. 40 lakhs as dowry, subjected her to verbal abuse, physical violence, and forced unnatural sexual acts — sodomy and oral sex. She left for her parents' home about one and a half months after the marriage. On August 9, 2013, the husband allegedly entered her parental home, dragged her into a room, abused her, and forced unnatural sex on her, following which she lodged an FIR. The trial court convicted him under Sections 498-A, 323, and 377 IPC. The appellate court upheld the conviction. The husband filed a criminal revision before the Allahabad High Court. The High Court upheld conviction under Sections 498-A and 323 IPC but acquitted him of Section 377 IPC, holding that marital rape is not an offence when the wife is 18 or above, and endorsing the MP High Court's view that Section 377 cannot apply between husband and wife given the amended Section 375 IPC.

What was at stake? For Sanjeev Gupta, a life sentence under Section 377 IPC. For the prosecutrix, the recognition that forced sodomy by a husband is a crime. For the law, a doctrinal collision between two penal provisions — and a reminder that India's marital rape exception remains intact.

The marriage that soured in weeks

The couple married in July 2012. Within weeks, the prosecutrix alleged that Sanjeev Gupta demanded a Fortuner car and Rs. 40 lakhs as dowry. She claimed he subjected her to verbal abuse, physical violence, and forced unnatural sexual acts — sodomy and oral sex. She left for her parents' home about one and a half months after the marriage.

On August 9, 2013, the husband allegedly entered her parental home, dragged her into a room, abused her, and forced unnatural sex on her. Following this, she lodged an FIR under Sections 498-A, 323, 504, 377 IPC and Section 3/4 Dowry Prohibition Act.

The husband denied all allegations, claiming the FIR was instigated by her family and that it was her second marriage.

The trial and appeal: conviction on all counts

The trial court convicted Sanjeev Gupta under Sections 323, 498-A, and 377 IPC. The appellate court upheld the conviction under all three sections, affirming that sodomy and oral sex with a spouse constituted cruelty and an unnatural offence.

The husband then filed a criminal revision before the Allahabad High Court.

What each side argued

The revisionist-accused challenged his conviction under Sections 498-A, 323, and 377 IPC recorded by the trial court and upheld by the appellate court. He argued that the evidence was insufficient, that the FIR was motivated, and that the medical evidence did not support the allegation of unnatural sex.

The State opposed the revision, arguing that the concurrent findings of the courts below were based on credible testimony and that the conviction under Section 377 IPC was justified.

The High Court's approach: revisional jurisdiction

Justice Ram Manohar Narayan Mishra, sitting singly, examined the legality and propriety of the findings. The Court noted that in revisional jurisdiction, it examines only legality and propriety of findings, sentence and order, and refrains from substituting its conclusion on elaborate reconsideration of evidence.

On the facts, the Court found no error in the conviction under Sections 498-A and 323 IPC. The evidence of the prosecutrix, corroborated by other witnesses, established cruelty and hurt. The conviction under these sections was affirmed.

The Section 377 question: where the law broke

The critical issue was whether Section 377 IPC could apply to sexual acts between a husband and his wife aged 18 or above.

The High Court held that it could not. The reasoning was twofold.

First, the Court endorsed the view of the Madhya Pradesh High Court that after the 2013 amendment to Section 375 IPC — which expanded the definition of rape to include all forms of penile penetration — and given the marital rape exception in Exception 2 to Section 375 IPC (which makes consent immaterial for wives aged 18 or above), Section 377 IPC cannot be attracted to sexual acts between husband and wife. The logic: if the law says that all penile penetration by a husband upon his adult wife is not rape, then it cannot simultaneously be an unnatural offence under Section 377.

Second, the Court noted the absence of supportive medical evidence for unnatural sex. The prosecutrix's testimony alone, without corroboration, was insufficient to sustain the conviction under Section 377 IPC in the absence of any independent evidence.

The Court also observed that the proposed Bhartiya Nyaya Sanhita, which is likely to replace the IPC, does not contain any provision equivalent to Section 377 IPC — signaling legislative intent to abolish the unnatural offences provision entirely.

THE PLAY: When Section 375 IPC covers all forms of penile penetration by a husband upon his wife, and the marital rape exception renders consent immaterial for wives aged 18 or above, Section 377 IPC cannot apply to sexual acts between husband and wife.

The precedent that mattered

The High Court relied on two key precedents.

First, Independent Thought v. Union of India (2017) 10 SCC 800, where the Supreme Court read down Exception 2 to Section 375 IPC to hold that sexual intercourse between a man and his wife aged between 15 to 18 years would amount to rape. The Allahabad High Court used this to clarify that the marital rape exception only protects husbands when the wife is 18 or above; below 18, it constitutes rape.

Second, the High Court endorsed and followed the Madhya Pradesh High Court's judgment on the interplay between Section 377 and Section 375 IPC. That judgment held that after the 2013 amendment to Section 375 IPC — which includes all forms of penile penetration — and given the marital rape exception making consent immaterial, Section 377 IPC cannot apply between husband and wife.

What the Court did not decide

The High Court acknowledged that petitions seeking criminalization of marital rape are pending before the Supreme Court. But until a decision is rendered, the current legal position stands: there is no criminal penalty for marital rape when the wife is of or above 18 years of age.

The Court also noted, in obiter, that the proposed Bhartiya Nyaya Sanhita does not contain any provision equivalent to Section 377 IPC. This signals legislative intent to abolish the unnatural offences provision entirely, which may influence future courts dealing with pending cases under Section 377.

The operative order

The revision was partly allowed. The conviction and sentence under Sections 498-A and 323 IPC were affirmed. The conviction under Section 377 IPC was set aside, and the revisionist was acquitted of that charge.

Why this matters in practice

For advocates, this judgment is a reminder of the doctrinal tension between Section 375 and Section 377 IPC in the context of marriage. The High Court's reasoning — that the 2013 amendment to Section 375 IPC subsumes all forms of penile penetration, and that the marital rape exception makes consent immaterial — effectively closes the door on Section 377 prosecutions between spouses where the wife is 18 or above.

For CFOs and founders, the judgment has no direct commercial impact. But it underscores the importance of understanding the legal framework governing personal relationships, particularly in the context of workplace policies on sexual harassment and domestic violence.

For the prosecutrix, the judgment is a mixed outcome. She obtained conviction for cruelty and hurt, but the recognition that forced sodomy by a husband is a crime remains elusive — at least until the Supreme Court decides the pending petitions on marital rape.

The bottom line

Until the Supreme Court decides otherwise, a husband cannot be convicted under Section 377 IPC for sexual acts with his wife aged 18 or above — but he can still be convicted for cruelty and hurt under Sections 498-A and 323 IPC.