The woman has learning difficulties, and carers say there is evidence that her mental health has reached a stage where she no longer has the capacity to consent.
At a preliminary hearing at the Court of Protection in London yesterday, a judge said the man might be put in a situation where he could face prison if he breached an order, or an undertaking, not to make love to his wife.
But the judge said he wanted to examine evidence in detail - and hear arguments from lawyers representing the woman, the man, and the council involved - before making any decisions.
He also suggested that such an order would be difficult to police.
They want a judge in the Court of Protection, where issues involving people who lack the mental capacity to make decisions, to consider the case.
'I cannot think of any more obviously fundamental human right than the right of a man to have s-x with his wife - and the right of the State to monitor that,' he said.
'I think he is entitled to have it properly argued.'
A full hearing is expected to take place in the near future.
Mr Justice Hayden said the couple involved could not be identified in the media.