Chh HC | “Sexual intercourse by husband would not constitute an offence of rape even if it was by force or against her wish”; Can a wife initiate proceedings against her husband for unnatural sex under S. 377 IPC?

Chhattisgarh High Court: N K Chandravanshi, J. partly allowed the revision petition by discharging the applicant of charge under Section 376 Penal Code, 1860 and upheld the charges framed under Sections 377 and 498/34 Penal Code, 1860.

The instant criminal revision was preferred by the applicants against the order dated 22-1-2021 passed by Addl. Sessions Judge, Bemetara, Distt. Bemetara by which charges under Sections 498-A, 34, 376 and 377 of the Penal Code, 1860 have been framed against the applicant 1 and charge under Section 498-A of the IPC has been framed against applicants 2 and 3.

The main accusations are that the applicants started harassing complainant on demand of dowry and used to abuse her and commit marpeet with her (battery). The applicant 1/husband also had made unnatural physical relation with her on many occasions by inserting his fingers and radish in her vagina, despite her protest.

Counsel for the applicant submitted that the complainant and the applicant 1 are legally wedded wife and husband, and, in India, marital rape is not recognized and the same is not an offence in view of Exception II of Section 375 of the IPC, therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the IPC are spelt out against applicant 1.  It was further submitted that carnal intercourse against the order of nature with any man; woman or animal voluntarily is necessary ingredient of Section 377 of the IPC which is not present in this case. Therefore, the order of framing of charges against the applicant 1/ husband under Sections 376, 377 and 498 A of the IPC is illegal and erroneous and not sustainable.

The Court observed that Exception II of Section 375 IPC makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In the present case, complainant is legally wedded wife of applicant 1, therefore, sexual intercourse or any sexual act with her by the applicant 1/husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, charge under Section 376 of the IPC framed against the applicant 1/husband is erroneous and illegal.

The Court observed that in regard to charge framed under Section 498-A of the IPC, the written report and the statements of the complainant show that she was subjected to cruelty by all the applicants by abusing and committing marpeet on demand of dowry, money and other articles from her parents. Therefore no infirmity in framing charges was found under Section 498-A/34 of the IPC against the applicants.

While dealing with charge framed under under Section 377 of the IPC the Court relied on judgment Momina Begum v. Union of India dated 4-3-2013 in Criminal Petition No. 98/2012 wherein it was held

“18. As a matter of fact penetration of any object by the offender into the sex organ with an intention to derive sexual pleasure is sufficient to constitute the sexual connection against the order of nature necessary to constitute the offence under Section 377 of the I.P.C.

…Use of sex organ by the offender is essential to commit an unnatural offence against the nature, in terms of Section 377 of the I.P.C. where dominant intention of the offender is to derive unnatural sexual satisfaction. If the offender with intention to derive sexual satisfaction repeatedly inserts any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a carnal intercourse against the order of nature. Therefore, if dominant intention of the offender is to derive sexual satisfaction by unnatural way, such act of the offender would attract the ingredient of offence under Section 377 of the I.P.C.”

The Court further relied on Nimeshbhai Bharatbhai Desai v.  State of Gujarat 2018 SCC Online Guj 732 wherein it was held that “a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the I.P.C. Section 377 of the I.P.C. does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under Section 377 of the I.P.C.”

The Court observed that charge framed under Section 377 of the IPC cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the IPC where dominant intention of the offender is to derive unnatural sexual satisfaction by repeatedly inserting any object in the sex organ of the victim and consequently deriving sexual pleasure, such act would constitute as carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the IPC.

The Court thus held “the instant revision is partly allowed. The applicant No. 1 is discharged from the charge framed against him under Section 376 of the I.P.C. This Court finds that trial Court has not committed any illegality in framing the charge under Section 377 of the I.P.C. against the applicant No. 1 and under Section 498-A/34 of the I.P.C. against all the applicants.”

[Dilip Pandey v. State of Chhattisgarh, CR.R. No. 177 of 2021, decided on 23-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Applicant: Mr. Y.C. Sharma and Mr. Sachin Nidhi

For respondent: Mr. Devesh Chandra Verma

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