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4. The prevalent code, i.e., the Bhartiya Nyaya Sanhita, 2023 (in short 'BNS') also be examined in this regard."

9. Today, Mr. Bahri has submitted that insofar as Section 63 of the BNS is concerned, which corresponds to Section 375 of IPC, the Exception 2 to Section 375 IPC continues to exist, except that there is a change in the age of the wife which has been increased to 18 years instead of 15 years under IPC. It is also submitted that no corresponding provision to Section 377 of IPC exists under the BNS. The relevant portion of Section 63 of BNS is reproduced herein under:

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/11/2024 at 14:58:24 Therefore, Exception 2 to Section 375 IPC is read down as follows:

"Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape."
"161. The husband cannot be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife as the marital rape is not covered under section 375 of the IPC. The husband cannot be prosecuted for the offence of rape at the instance of his wife in view of Exception-II in section 375 of the IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.
xxx xxx xxx The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/11/2024 at 14:58:25
33. From the perusal of above observation made in the case of Navtej Singh Johar (Supra), it is clear that it was considered, in that case by the Hon'ble Supreme Court that what is not an offence under Section 375 IPC cannot be an offence under Section 377 IPC (two consenting adults for acts in private, as specified under Section 375 IPC). Exception 2 to Section 375 IPC cannot be taken out from it while reading Section 377 IPC in relation to husband and wife. If an act between husband and wife is not punishable due to operation of Exception 2 to Section 375IPC, the same act may not be an offence under Section 377 IPC."