Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Gujarat High Court: In an application filed under Section 482 of the Bhartiya Nagarik Suraksha Sanhita, 2023 for grant of anticipatory bail, where the applicant-husband had been accused of sexually abusing and mentally and physically torturing his wife, the Single Judge Bench of Divyesh A. Joshi, J, rejected the application stating that the severity of allegations made out in the FIR demanded custodial interrogation. Recognising bodily freedom in married couples, Court also stated that even though marriage has been seen as an automatic grant of sexual consent since decades, the modern legal frameworks increasingly recognize the bodily freedom of an individual, even within a marital relationship.
Background
The instant application had been filed by the applicant (‘husband’) praying for grant of an anticipatory bail. According to the FIR, the husband along with two co-accused, father-in-law and mother-in-law, had given the victim (‘wife’) false confidence that she would be taken care of to persuade her into getting married. However, after the wedding, all the accused persons had started demanding dowry from the wife. Additionally, the father-in-law and the husband were physically and mentally harassing her as well as sexually abusing her without her consent.
Subsequently, the wife was thrown out of the marital home in 2025 post which the present FIR had been filed.
Analysis, Law and Decision
At the outset, the Court reiterated the settled factors for consideration of an application of bail which were:
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whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
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nature and gravity of the accusation;
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severity of the punishment in the event of conviction;
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danger of the accused absconding or fleeing, if released on bail;
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character, behaviour, means, position and standing of the accused.
The Court perused the record and noted the various grave and serious allegations contained in the FIR such as sexual abuse, physical and mental torture, forced unnatural sex as well as burning the private parts of the wife with a lit cigarette. The Court also took note of the WhatsApp chats placed on record wherein the husband had used extremely abusive language towards the wife. Based on this, the Court noted that prima facie the dispute did not appear to be a simple matrimonial dispute but rather it went beyond the general and usual allegations made in every matrimonial dispute.
The Court further noted that even though marriage has been viewed as an automatic grant of sexual consent for decades, the modern legal frameworks have increasingly recognized the bodily freedom of an individual, even within a marital relationship. The Court also noted that Having an unnatural sex by any spouse against the will and wish of other partner not only causes immense physical pain but it also gives mental, and emotional trauma to the unconsented spouse. The Court further observed that the husband had married second time to the wife and the first wife of the husband had also made the similar kind of allegations against the husband, which shows that the husband is a repeat offender and is habitual in doing such kind of acts.
The Court considered the gravity of allegations levelled in the FIR as well as the material placed on the record and opined that custodial interrogation of the husband was extremely necessary. The Court held that in deciding anticipatory bail application, it is the first duty of the Court to see seriousness of the offence, prima facie case and interest of the society at a large. Therefore, when no special and compelling circumstances are made out and no case of false implication of present applicant in the alleged offence is made out before this Court, it should refrain itself from exercising its discretionary powers in favour of the present applicant at this stage.
Accordingly, the Court held that a grant of anticipatory bail at the present stage was likely to hamper the investigation and thus, rejected the bail application.
[XYZ v. State of Gujarat, Crl. Misc. No. 26922 of 2025, decided on 5-1-2026]
Advocates who appeared in this case:
For the Applicant: Yatin Oza, Senior Advocate, Aditya A. Gupta
For the Respondent: Jal Unwalla, Senior Advocate, Bomi H Sethna, Soham Joshi, APP