Source: Uttarakhand High Court 

Why in News? 

Recently, the Uttarakhand High Court in the matter of Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another has held that the husband shall not be punished under Section 377 of Indian Penal Code for committing rape on his wife. 

What was the Background of the Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another Case? 

• A suit has been instituted by the wife (respondent) against her husband (petitioner) for having unnatural intercourse with her. 
• She also pleaded that she has been assaulted and mistreated by her husband regularly due to which she needs medical attention. 
• She further added that her husband allegedly shows sexually explicit content to their child and performs forced sexual activities with her in front of the child. 
• It is also stated that the petitioner sometimes behaves very weirdly by throwing things in the house and urinating in front of the room, etc. 
• It was also added by the respondent that due to prolonged forced anal sex and brutal beating she has been suffering from injuries and needs medical attention. 
• The Additional Sessions Judge/Special Judge (POCSO) Haridwar summoned the petitioner under Section 377 Indian Penal Code (IPC) and under Section 11 and 12 of Protection of Children from Sexual Offences Act (POCSO Act). 
• The petitioner then challenged the order of the Trial Court before the Uttarakhand High Court. 

What were the Court’s Observations? 

• The Uttarakhand High Court observed that under the exception 2 of provision of Section 377 IPC, exempt husband from the charge of rape if the wife is not below the age of 15 years. 
• Therefore, the High Court set aside the ruling of the trial court for summoning the petitioner under Section 377 of IPC. 
• The Uttarakhand High court also observed that showing sexually explicit content to the child amounts to sexual harassment and to be covered under the provisions of Section 11 read with Section 12 of the POCSO Act. 
• Therefore, the High Court upheld the Trial Court ruling regarding summoning the petitioner under Section 11 read with Section 12 of the POCSO Act. 

Provisions of IPC 

• Section 375 : 
  • It is now inserted under Section 63 of BNS, 2023 where the age of consent by a married woman for sexual intercourse has been increased from 15 years (as given under IPC) to 18 years. 
  • Section 375 of IPC states rape as .— 
    • Clause (1) states that a man is said to commit "rape" if he— 
      • penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or 
      • inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or 
      • manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or 
      • applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions 
        • Description 1st states against her will. 
        • Description 2nd states without her consent. 
        • Description 3rd states with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. 
        • Description 4th  with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. 
        • Description 5th with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 
        • Description 6th states with or without her consent, when she is under eighteen years of age. 
        • Description 7th states when she is unable to communicate consent. 
    • Explanation 1. — For the purposes of this section, "vagina" shall also include labia majora. 
    • Explanation 2. — Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act 
    • It is provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. 
    • Exception 1. — A medical procedure or intervention shall not constitute rape. 
    • Exception 2. — Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 
• Section 377: Unnatural offences.— 
  • Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 
  • Explanation.— Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. 

Provisions of POCSO 

• Section 11: Sexual harassment. — 
  • A person is said to commit sexual harassment upon a child when such person with sexual intent, —  
    • utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or  
    • makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or  
    • shows any object to a child in any form or media for pornographic purposes; or  
    • repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or  
    • threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or  
    • entices a child for pornographic purposes or gives gratification therefor.  
  • Explanation. —Any question which involves “sexual intent” shall be a question of fact.  
• Section 12 Punishment for sexual harassment. — 
  • This section states that whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.  

Cases Referred by the Court in Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another Case 

• Umang Singhar v. State of Madhya Pradesh (2023): It was held that when Section 375 IPC (as amended by the 2013 Amendment Act) includes all possible parts of penetration of the penis by a husband to his wife, and when consent for such an act is immaterial, there is no scope for the offense under Section 377 IPC to be attracted where the husband and wife are involved in sexual acts. 
• Sanjeev Gupta v. State of U.P. and another (2023): It was held that the protection of a person from marital rape continues in cases where his wife is 18 years of age or older. 

Constitutional Validity of Section 377 of IPC  

• Partial Constitutionality: 
  • The offence under Section 377 related to non-consensual intercourse, child sexual abuse, and bestiality are still criminalized in India. 
• Partial Unconstitutionality: 
  • The offences related to the criminalization of consensual intercourse between same-sex couples have been held unconstitutional and violative of Article 14, Article 15, Article 19, and Article 21 of the Constitution of India. 

Evolution Through Precedents 

• Naz Foundation v. Government of NCT of Delhi (2009):  
  • In this case the provisions related to criminalization of consensual intercourse between the same sex couples was held invalid by the Delhi High Court. 
• Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (2013): 
  • In this case the judgment passes in the case of Naz Foundation was challenged where the judgement of Delhi High Court was overruled by the Supreme Court and held the provisions of Section 377 valid. 
  • High Court ignored the fact that only a small percentage of the country’s LGBTQIAs have faced charges and prosecution under Section 377, and that “this cannot be made a sound basis” for declaring the law unconstitutional. 
• National Legal Services Authority v. Union of India (2014):  
  • In this case finally the transgenders got their right to be identified as third category apart from male and female and the right to gender identity was granted to them. 
• Navtej Singh Johar v. Union of India (2018):  
  • In this case court relied on the judgement passed by the Delhi High Court in the case of Naz Foundation and held the part of Section 377 of IPC unconstitutional which criminalizes consensual intercourse between same sex. 
• Position of Section 377 Under Bhartiya Nyaya Sanhita (BNS), 2023 
  • Section 377 of the IPC has been deleted from the BNS, and it has been highly criticized by the people. 
  • It has been noted that due to the deletion of this provision, males and transgender individuals will have no scope to protect themselves against acts of unnatural sex. 
  • The Supreme Court judges have reiterated that the government should take some measures to curb this menace.