Husband Forcefully Committing Unnatural Sex With Wife And Assaulting Her For Resisting Can Be Prosecuted For Cruelty U/S 498A IPC: Gwalior Bench Of MP HC

It is definitely in the fitness of things that while striking the right chord, the Gwalior Bench of the Madhya Pradesh High Court in a most learned, laudable, landmark, logical and latest judgment titled X vs The State of Madhya Pradesh And Others in Misc. Criminal Case No. 32576 of 2024 and cited in Neutral Citation No.: 2025:MPHC-GWL:10757 that was pronounced just recently on May 9, 2025 has minced absolutely just no words to hold in no uncertain terms that committing unnatural sex on wife against her will and assaulting her physically upon resistance amounts to cruelty under Section 498A IPC. It must be mentioned here that the Court was considering an application seeking quashing of FIR for the offences under Sections 377, 323 and 498A of the IPC. We need to note that the Court upheld an FIR that had been registered by a woman against her husband but clarified that the husband cannot be charged under Sections 377 or 376, as marital rape is not recognized as a crime under Indian law.

By the way, it was also held that husband committing unnatural sex with wife against her wishes and assaulting her for resisting would fall under the definition of cruelty under Section 498A of IPC. It is also worth noting that the Single Judge Bench of Gwalior Bench comprising of Hon’ble Mr Justice Gurpal Singh Ahluwalia who authored this robust judgment maintained most forthrightly stating concisely that:
Committing unnatural sex with wife against her wishes and on her resistance, assaulting and treating her with physical cruelty will certainly fall within the definition of cruelty. It is not out of place to mention here that demand of dowry is not sine qua non for cruelty. We thus see that the application was thus partly allowed in this leading case.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice GS Ahluwalia sets the ball in motion by first and foremost putting forth in para 1 that:
This application, under Section 482 of CrPC, has been filed for quashment of FIR in Crime No.11 of 2024 registered at Police Station Sirol, District Gwalior for offence under Sections 377, 323 and 498A of IPC and criminal proceedings in ST No. 227 of 2024.

For clarity, the Bench clarifies in para 2 stating concisely that:
It is submitted by counsel for applicant that although charge sheet has been filed, but charges have not been framed. Therefore, this application is being decided under the impression that charges have not been framed.

As we see, the Bench then discloses in para 3 mentioning that:
Shri Vinod Kumar Dhakad has appeared for complainant/respondent No. 2 and written objection was also filed by respondent No. 2 in which she has repeatedly stated that in spite of undertaking given by applicant, the offence was repeated by him.

To put things in perspective, the Bench then envisages in para 4 observing succinctly that:
According to prosecution case, respondent No. 2 lodged an FIR alleging that she got married to applicant on 2.5.2023 in accordance with Hindu rites and rituals. An amount of Rs. 5 lakhs, household articles and one Bullet motorcycle were given by her parents in the marriage. Right from the date of marriage, applicant is committing unnatural sex with her after consuming liquor and whenever she refused to indulge in such activity, then she is being assaulted and treated with cruelty. When she narrated this incident to her parents, then they also tried to persuade her husband but he did not improve, and he always does wrong act with her, as well as, treat her with cruelty by assaulting her. She had complained to Mahila Paramarsh Kendra on number of occasions. Her husband was also summoned by the police but he did not agree, and he has not stopped committing the bad activity and also did not stop treating her with cruelty, and accordingly, the FIR was lodged.

As it turned out, the Bench then enunciates in para 5 putting forth clearly that:
Challenging the FIR, it is submitted by counsel for applicant that undisputedly respondent No. 2 is legally wedded wife of applicant. In the light of judgment passed by this Court in the case of Manish Sahu vs. State of Madhya Pradesh and another decided on 1.5.2024 in MCRC No. 8388 of 2023 (Principal Seat), it is clear that unnatural sex with wife is not a rape as per amended definition of rape under Section 375 of IPC, and thus it is submitted that when the basic allegation of committing unnatural sex is not an offence, then no offence under Section 498A of IPC is made out.

Needless to say, the Bench then states in para 6 that:
Heard learned counsel for the applicant.

Be it noted, the Bench notes in para 7 that:
This Court in the case of Manish Sahu (Supra) has held as under:

10. Now the only question for consideration is as to whether a husband during the subsistence of marriage while residing together can be said to be guilty of marital rape or in other words, whether consent of wife residing along with her husband during the subsistence of marriage can claim that the sexual act was committed with her without her consent.

11. Section 375 Exception 2 of IPC provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. The only exception to this provision is Section 376-B of IPC where the sexual act with his own wife during the separate living on account of judicial separation or otherwise would be a rape.

12. Thus, when rape includes insertion of penis in the mouth, urethra or anus of a woman and if that act is committed with his wife, not below the age of fifteen years then consent of the wife becomes immaterial.

16. Thus, it is clear that a consensual sexual conduct between adults of the same sex cannot be termed as an offence under Section 377 of IPC. Thus in nutshell, it can be said that if an unnatural sex takes place between two persons of either same gender or different gender with the consent of both the parties, then it would not be an offence under Section 377 of IPC.

17. Thus the consent of both the parties is necessary for taking the act out of the purview of Section 377 of IPC. However, this Court after considering the amended definition of rape as defined under Section 375 of IPC has already come to a conclusion that if a wife is residing with her husband during the subsistence of a valid marriage, then any sexual intercourse or sexual act by a man with his own wife not below the age of fifteen years will not be rape. Therefore, in view of the amended definition of rape under Section 375 of IPC by which the insertion of penis in the anus of a woman has also been included in the definition of rape and any sexual intercourse or sexual act by the husband with her wife not below the age of fifteen years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance. Marital rape has not been recognized so far.

18. Under these circumstances, this Court is of considered opinion that the allegations made in the FIR would not make out an offence under Section 377 of IPC. My view is fortified by a judgment passed by Co-ordinate Bench of this Court in the case of Umang Singhar Vs. State of Madhya Pradesh, Through Station House Officer and Another reported in 2023 SCC On Line MP 3221.

As a corollary, it would be instructive to note that the Bench then hastens to add in para 9 holding that:
Therefore, it is clear that unnatural sex with wife would not be an offence under Section 376 or 377 of IPC. Therefore, the FIR, so far as it relates to commission of unnatural sex under Section 377 of IPC, is hereby quashed.

Quite significantly, we see that the Bench then propounds in para 14 holding pragmatically that:
From a plain reading of Section 498A of IPC, it is clear that any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health, whether mental or physical, to the woman, would amount to cruelty under Section 498A of IPC.

Most significantly, the Bench then encapsulates in para 15 what constitutes the real cornerstone of this notable judgment postulating that:
Committing unnatural sex with wife against her wishes and on her resistance, assaulting and treating her with physical cruelty will certainly fall within the definition of cruelty. It is not out of place to mention here that demand of dowry is not sine qua non for cruelty.

Equally significant and so also most forthrightly, the Bench points out in para 16 holding precisely that:
Under these circumstances, this Court is of considered opinion that since there are specific allegations that whenever respondent No. 2 resisted to the unnatural conduct of applicant, then she was assaulted and was treated with physical cruelty, this Court is of considered opinion that offence under Section 498A of IPC is made out.

Finally and most rationally, the Bench then concludes by holding briefly in para 17 that:
Accordingly, this application is partially allowed. Offence under Section 377 is hereby quashed. However, FIR in relation to offence under Section 498A and 323 of IPC is upheld.

In conclusion, we thus see that the Single Judge Bench comprising of Hon’ble Mr Justice GS Ahluwalia of the Gwalior Bench of Madhya Pradesh High Court at Jabalpur in this most progressive, pragmatic, persuasive and pertinent judgment referred to many leading cases some of which have already been discussed hereinabove and so also the landmark case of Navtej Singh Johar and Others Vs Union of India Through Secretary, Ministry of Law and Justice reported in (2018) 10 SCC 1 and has made it abundantly clear that the offence under Section 377 is not made out and so was thus very rightly quashed also by the Bench but it cannot be left unnoticed that it was also held most commendably that the applicant would be guilty of cruelty for committing unnatural sex with wife under Section 498A of the IPC and so also for assaulting her for resistance. We thus see that the application of the applicant was thus partly allowed. Very rightly so! There can be definitely just no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh