NEW DELHI: Noting that the law doesn’t recognise the concept of marital rape, Delhi high court quashed an order regarding prosecution of a husband under Section 377 for performing “unnatural” sex with his wife. The court also observed “inherent contradictions” in the wife’s statements regarding consent while highlighting the exception of “implied consent” in marriage under current rape law.The court observed that Section 377 of the IPC, which penalises certain sexual acts, would not be applicable within a marital relationship, especially in the absence of any allegation of lack of consent.“In the context of a marital relationship, Section 377 of IPC cannot be applied to criminalise non-penile-vaginal intercourse between a husband and wife. Such an interpretation would be in line with the reasoning and observations of the Supreme Court in Navtej Singh Johar (case),” the court said in its May 13 order.Additionally, it observed that the wife had not explicitly stated whether the act was committed against her will or without her consent.The wife alleged that the husband was “impotent” and claimed their marriage was part of a conspiracy by him and his father to establish illicit relations and extort money from her family. In response, the husband maintained that the marriage was legally valid and that there was an implied presumption of consent for consensual sexual acts within it, which could not attract charges under Section 377. Noting an “inherent contradiction” in the wife’s statements, the judge pointed out that she simultaneously accused the man of sexual incapacity while also alleging that he had performed oral sex.“The essential ingredient of lack of consent – central to constituting an offence under Section 377 of IPC post-Navtej Singh Johar (case) between any two adults – is clearly missing. Thus, there is not only a lack of prima facie case, but even the threshold of strong suspicion is not met,” the court said.“No prima facie case is made out against the petitioner for the offence under Section 377 of IPC. The impugned order directing the framing of charge is, therefore, unsustainable in law and is liable to be set aside,” it added.The court further noted that acts like anal or oral intercourse fall within the scope of rape under Section 375(a) of the IPC, but also clarified that there was no reason to believe the petitioner would not be covered by the legal immunity granted to husbands under the exception to the rape provision.“There is no basis to assume that a husband would not be protected from prosecution under Section 377 of IPC, in view of exception 2 to Section 375 of IPC since the law (amended Section 375 of IPC) now presumes implied consent for sexual intercourse as well as sexual acts, including anal or oral intercourse within a marital relationship,” it said.