Source: The Indian Express 

Introduction 

The Chhattisgarh High Court has issued a significant ruling extending marital rape immunity to Section 377 of the Indian Penal Code, 1860 (IPC) which deals with "unnatural sex." This decision effectively means that non-consensual sexual acts between married partners, even those covered under Section 377, cannot be treated as an offence if they fall under the marital exception outlined in Section 375 of the IPC. 

What was the Background and Court Observation of Gorakhnath Sharma v. State of Chhattisgarh? 

• Background of the Case: 
  • The case originated from an appeal filed by a man against his conviction related to his wife's death in 2017. 
  • A trial court had initially found the man guilty after his wife became ill and died due to a forced physical relationship. 
  • The trial court had convicted him under three sections:  
    • Section 375 (rape), Section 377 (unnatural sex), and Section 304 (culpable homicide not amounting to murder) of IPC 
  • Section 377 was often used as the only legal recourse for married women in cases of non-consensual sex in marriage. 
  • Section 375 already contained a marital rape exception, exempting husbands from rape charges if the wife was above 18 years. 
  • Section 377, which criminalized "carnal intercourse against the order of nature," didn't originally have a marital exception. 
  • The case reached the Chhattisgarh High Court on appeal against these convictions. 
• Court's Observations: 
  • The High Court reversed the trial court's ruling completely. 
  • The Court noted that Section 375's marital rape exception was deliberately retained even after the 2013 amendment that expanded rape's definition. 
  • The Court applied the principle that when two provisions are inconsistent, the earlier one is superseded by the latter. 
  • The High Court referenced the Supreme Court's 2018 judgment that had decriminalized homosexuality by reading down Section 377. 
  • The Court ruled that since marital rape is not considered an offence under Section 375, unnatural sex under Section 377 also cannot be treated as an offence when committed by a husband. 
  • The Court effectively extended the marital rape immunity to Section 377. 
  • This ruling effectively removed one of the few legal protections available to married women in cases of non-consensual sex. 
  • The Court observed that after the 2018 ruling, Section 377 doesn't apply to acts between consenting partners. 

What is Section 377 of Indian Penal Code,1860? 

• The section criminalizes "carnal intercourse against the order of nature" - meaning sexual acts that are considered unnatural. 
• It applies to acts committed with any man, woman, or animal, making it broad in scope regarding potential victims. 
• The punishment prescribed is either life imprisonment or imprisonment up to 10 years, along with a fine. 
• The explanation to the section clarifies that penetration alone is sufficient to constitute carnal intercourse for this offense. 
• The section does not define what constitutes "against the order of nature," but courts have interpreted it to include sexual acts not intended for procreation. 
• After the Supreme Court's 2018 Navtej Singh Johar judgment, consensual acts between adults are no longer criminalized under this section. 
• The section remains applicable for non-consensual acts and acts with animals (bestiality). 
• Unlike Section 375 (rape), this section does not explicitly require lack of consent as an element of the offense. 

What are the Landmark Cases Referred ? 

• Navtej Singh Johar v. Union of India (2018) 
  • The Supreme Court established that gender identity and sexual orientation are fundamental to human dignity, drawing from National Legal Services Authority v. Union of India, (2014).  
    • The Court recognized that these aspects are not just choices, but intrinsic elements of personality protected under constitutional rights. 
  • K.S. Puttaswamy v. Union of India, (2017) the Court emphasized that privacy rights extend equally to the LGBTQ community regardless of their minority status.  
    • The judgment established that consensual intimate relationships between adults fall outside state regulation, marking a crucial boundary between private rights and state authority. 
  • The Court articulated a comprehensive view of equality by finding that criminalizing specific sexual acts disproportionately targets individuals based on their sexual orientation, violating both Articles 14 and 15.  
    • This connects discriminatory impact with constitutional protections against discrimination. 
  • Shakti Vahini v. Union of India, (2018)  , the Court reinforced that choosing one's partner is fundamental to individual liberty. 
    • This observation elevated same-sex relationships to the constitutional framework of personal freedom, making it a protected right rather than just a tolerated behavior.

Does the Bharatiya Nyaya Sanhita (BNS) Leave Men and LGBTQIA+ Individuals Without Protection Against Sexual Offenses? 

• The BNS has no provision that corresponds with Section 377 of IPC. 
• It leaves men and LGBTQIA+ individuals without meaningful protection against sexual offenses since sexual offenses under BNS only envision men as perpetrators and women as victims. 
• The Parliamentary Standing Committee specifically noted that no provision for non-consensual sexual offenses against males, females, transgender persons, and cases of bestiality has been made in the BNS. 
• Sexual offenses in BNS fall under "Of Offences Against Woman and Child" chapter, limiting its scope to only protecting women and children as victims. 
• The Transgender Persons (Protection of Rights) Act, 2019 only provides maximum 2-year imprisonment for offenses, which places these crimes on a lower level compared to other serious sexual offenses. 
• This gap in law has led to legal challenges, including a Public Interest Litigation (PIL) at Delhi High Court seeking revival of Section 377. 
• The Supreme Court declined to intervene in October 2024, ruling that directing what constitutes an offense falls under Parliamentary domain. 
• The deletion creates a legal vacuum where certain non-consensual sexual acts previously covered under Section 377 no longer have equivalent provisions in the new law. 

Conclusion 

The ruling has raised concerns among legal experts, particularly as Section 377 has been omitted in the new Bharatiya Nyaya Sanhita (BNS). This development, combined with the High Court's interpretation, effectively removes a crucial legal recourse that was previously available to married women in cases of non-consensual sexual acts. The matter gains additional significance as the marital rape exception is currently under challenge before the Supreme Court, with the Centre supporting its retention.