Unnatural Sex with a Female has been classified as Rape under section 377 I.P.C.
By Kishan Dutt Kalaskar
Unnatural Offence is an act or behaviour to commit a crime that is contrary to what is considered a natural offence. Section 377 of the IPC deals with the unnatural offences that state that “whoever voluntarily has carnal intercourse against the order of nature with any woman, man, or animal, shall be punished with life imprisonment or with the imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.” According to the interpretation in this section, penetration is enough to constitute carnal intercourse. This section refers to the English law[1] offences of sodomy and bestiality. Consent is immaterial in the cases of unnatural offences, as the text of this clause indicates, and the party consenting would be accountable as an abettor. This section is intentionally unclear since it is impossible to determine what goes against nature’s order.
The Buggery Act of 1533 is the source of Section 377 of the Indian Penal Code. This law has never been modified by Parliament since it was enacted until recently. This rule was founded on Judeo-Christian moral and ethical principles, which views sex to be merely functional, i.e. for procreation, and therefore believe homosexuality to be unnatural and against nature’s order. The functional basis is mentioned to identify what is natural, which indicates that every organ in the body has a certain role in fulfilling, and using that organ for a reason other than that function is unnatural.[2] As a result, any sex other than penile-vaginal will be deemed unnatural. Anything else than procreative sex is deemed abnormal using the same premise.
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In the case of Khanu v. Emperor,[3] the court held that the major object of carnal intercourse is that there should be possibility of conception of human beings, which in the case of sexual intercourse by inserting penis in the mouth is impossible.
The Indian Penal Code defines Section 377 as follows;
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.
Constitutional Validity of Section 377
In the case of Naz Foundation v Government of Delhi & Ors,[4] the constitutional validity of section 377 was challenged in the Delhi High Court. It was alleged in this case that section 377 violated the basic rights provided in Articles 14, 15, 19, and 21 of the Constitution by including consensual sexual intercourse between two adults in private. It was further argued that Article 21 could only be limited if there is a compelling state interest, which is not present in this case.[5] The petitioner further claimed that section 377’s legislative intent is based on outdated stereotypes with no historical or logical support. In this case, the two wings of the Union of India had filed wholly opposing affidavits. The Ministry of Home Affairs attempted to explain the act’s continued existence by citing public health, public disapproval, and social revulsion. On the other hand, the Ministry of Health and Family Welfare backed the petitioners’ contention, claiming that presence of section 377 in the statute book inhibited HIV/AIDS prevention efforts and that its removal would aid in the treatment of homosexuals with HIV/AIDS.
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The Ministry of Home Affairs’ argument that popular morality or public disapproval cannot be a valid ground for curtailing the right under Articles 14 and 21 was rejected by the Delhi High Court. According to the court, the only kind of morality that can pass the test of compelling state interest is constitutional morality and not public morality. The constitutional morality is violated by Section 377 of the IPC, which criminalizes homosexuals solely on the basis of their sexual orientation. The court accepted all of the petitioners’ arguments and found section 377 extra vires, which made it illegal for adults to engage in consenting sexual acts in private. The court also held that the provisions of section 377 would continue to apply to adolescents who engage in non-consensual penile and non-vaginal intercourse.
In the case of Suresh Kumar Koushal and others v. Naz Foundation & others[6], religious entities and individuals including the All India Muslim Personal Law Board, the Apostolic Churches Alliance, and the Utkal Christian Council appealed the Delhi High Court’s judgement in the Supreme Court. They contended that the legislature adopted section 377 to defend societal values and morals. Therefore the Supreme Court agreed with this argument and overturned the High Court’s decision.
The apex court had also declared in the case of Navtez Singh Johar v. UOI[7] that consenting adult gay sex is not a crime and that Articles 14 and 21 of the Indian Constitution contradict Section 377’s current interpretation.
Applicability of the section in today’s times
Section 377 IPC still applies to sex with minors, non-consensual sexual acts, and bestiality, with the exception of gay sex. Now, unnatural sexual assault with a female has been classified as rape, and sexual assault with a minor, whether male or female, is subject to the POCSO legislation.
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There is a common misconception that Section 377 has been repealed. Section 377 has been toned down to the point where sexual behaviour of any kind among consenting people is no longer illegal. There is a need for people, both men and women, to recognize their rights that non-consensual sexual behaviour in adults, as well as all sexual conduct with minors or animals without their agreement, is still illegal.[8] Most often, cases of unnatural sex between husband and wife, the wife being a victim of the heinous crime without her consent, there are situations where the wife cannot bring herself to report the crime and suffer in silence as these kind of issues are still a taboo in the society.
Under section 377 of the IPC, a wife can file a prosecution against her husband for unnatural sexual offences.[9] Because the section punishes sexual intercourse outside the natural order regardless of an individual’s sexual orientation or gender identity, such actions can be prosecuted under section 377 even if they are committed by heterosexual couples. Furthermore, the criminal can be penalized under this clause even if the victim agreed to the act (regardless of age). The victim’s permission is irrelevant to the application of section 377, and a criminal act cannot be justified by the victim’s assent.[10]
The Punjab and Haryana High court stated in the case of State of Haryana v. Raj Kumar that it is easy to level such allegations but even more difficult to prove and, therefore, courts will always have to be cautious while dealing with such allegations. The division bench of justices MMS Bedi and Hari Pal Verma said that on the basis of the evidence presented, the allegations are corroborated by other circumstances to show that one of the spouses has indulged in unnatural acts, and therefore the marriage can be dissolved by a decree of divorce.
Conclusion
This legislation is both beneficial and vulnerable to abuse. While marital rape is not a crime in India, through this section, Indian women will have a mechanism to have their husbands penalized if they perform unnatural sexual actions on them. This section will serve as a tool in the hands of Indian wives who suffer at the hands of their abusive husbands. Section 377, on the other hand, has a lot of room for abuse because consent isn’t a criterion to determine whether or not it should be used. Therefore, the complainant’s permission to do the unnatural sexual act would not be enough to keep the perpetrator out of jail. With changing times and changing laws, it is essential that people start acting out towards the wrong being done to them, and therefore it is essential that they know what can be done and what help they can get from the law.
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[1] PSA Pillai, Criminal Law 714(11th ed. Lexis Nexis. 2012) 714.
[2] See Burton Leiser, Homosexuality and the Unnaturalness Argument in SEX, MORALITY AND THE LAW 44 (Gruen & Panichas eds., 1996)
[3] Khanu v. Emperor, AIR 1925 Sind 286
[4] Naz Foundation v. Govt. of NCT, 2010 CrLJ 94.
[5] KD Gaur , Indian Penal Code 618(3rd ed. Universal Law Publ’g co pvt ltd. 2013).
[6] Suresh Kumar Koushal v. NAZ Foundation, AIR 2014 SC 563.
[7] http://recentscientific.com/unnatural-sexual-offences-and-its-current-legal-status-india%E2%80%93-review-literature
[8] https://www.thequint.com/news/india/sec-377-applicable-under-what-circumstances
[9] https://www.hindustantimes.com/punjab/forcible-unnatural-sex-in-marriage-is-cruelty-hence-a-ground-for-divorce-hc/story-Iga7sgtia5KQy4C436KPmL.html.
[10] https://bnblegal.com/article/unnatural-offences/.
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