Husband can’t be liable U/S IPC 377 for unnatural sex with wife : MP HC

You are currently viewing Husband can’t be liable U/S IPC 377 for unnatural sex with wife : MP HC

Umang Singhar vs The State Of Madhya Pradesh on 21 September, 2023

The Court also observed that the marital relationship is not only for procreation and that anything done between spouses that is beyond “natural” sexual intercourse cannot be categorically labeled as “unnatural.”

Para 6.  Learned counsel for the petitioner sanguinely submitted that even under Section 375 of IPC there is intelligible differentia between sexual intercourse or sexual act “by a man with another woman” and “by a man with his own wife”. Despite the act being completely identical, the former one is an offence, albeit latter one is not. He submitted that as per Section 377 of IPC, although it relates to voluntary carnal intercourse against the order of nature “by a husband with his wife” but the same needs to be interpreted in the light of the amended Section 375 of IPC. He further submitted that the principal object of the Legislature from inception is to protect the marital institution from being destroyed by the misuse of statutory provisions and according to him despite various amendments in IPC, the husband has always been safeguarded even for those acts which are otherwise punishable under Section 376 of IPC. He submitted that in a conjugal relationship what could be “against the order of nature” is to be examined in the Indian perspectives, keeping in mind the object of the Legislature to protect the marital institution. Shri Khandelwal submitted that though there is no specific repeal with regard to offence of Section 377 of IPC but in view of the changed definition of ‘rape’ under Section 375 and as per Exception-2, the husband cannot be said to be an accused for making relation with his wife and Section 375 contained all parts of the body over which any act which is said to be a rape is done, the said part is also included and any act is done by a man with a woman, the offence of unnatural sex, Section 377 is made out. He further submitted that when exception is provided and husband has been given protection from rape then it would also include offence of Section 377. Shri Khandelwal also submitted that any consensual sexual act, sexual intercourse or carnal intercourse between husband and wife with or without the use of any object or any body part of procreation, foreplay or excitement or for the satisfaction of sexual urge or for sexual pleasure cannot be considered as against the order of nature and therefore such consensual sexual act, sexual intercourse or carnal intercourse between the husband and wife cannot fall within the definition of unnatural offence punishable under Section 377 of IPC, however, if such sexual act, sexual intercourse or carnal intercourse between husband and wife is non-consensual then it obviously will fall under the amended definition of rape as defined under Section 375 of IPC. He submitted that the latter statute describes an offence created by earlier statute and imposes a different punishment or varies the procedure, the earlier statute is repealed by implication. If there is any conflict, inconsistencies or repugnance between two enactments, both cannot stand together and earlier enactment is considered to be abrogated by the latter and latter will hold the field. According to learned counsel, the amended definition of Section 375 of IPC covers all those acts which were earlier punishable exclusively under Section 377 of IPC considering them earlier against the order of nature, post-amendment of 2013 though considered to be unnatural offence but became part of the amended definition of rape and cannot be considered as “against the order of nature” and they should otherwise be considered part of the amended definition of Section 375 of IPC and according to Shri Khandelwal Section 377 virtually became redundant. Questioning the verisimilitude of respondent No.2, Shri Khandelwal submitted that the FIR lodged by respondent No.2 is nothing but a malign act on her part inasmuch as the said complaint contained falsely improvised fact, just to grab the property of and to extort money from the petitioner. He pinpointing the first complaint made by respondent No.2 to the police on 02.11.2022 submitted that there was no allegation of unnatural sex but in second complaint, on the basis of which FIR lodged, she developed the story and made allegation of unnatural sex so as to bring home the offence of Section 377 of IPC. Shri Khandelwal submitted that the petitioner has also filed a suit for damages and permanent injunction in the Court of Civil Judge, Second Division, Gurgaon against respondent No.2 on 14.11.2022 in which damages were claimed on the basis of conduct of respondent No.2 alleging therein that she was pestering and misbehaving with the petitioner and her attitude/ temperament towards the petitioner has created an atmosphere in which it was arduous for the petitioner to live even for a single day with her. After the notice of case for damages through mobile was served upon respondent No.2 on 16.11.2022, then on the same day, she made a complaint as a counterblast. She started humiliating him publicly and endeavoured to disparage his sound political image and instinctively her attitude wreaked havoc in the life of petitioner, who firmly realized that her presence would be hazardous for his political career. In the said suit, cause of action was shown to have arisen in the month of October, 2022 when respondent No.2 threatened the petitioner to publish all illusory write-ups in newspapers. He submitted that respondent No.2 just to take vengeance from the petitioner filed the fictitious complaint. To reinforce his contentions, Shri Khandelwal has placed reliance on various decisions, they are in re Navtej Singh Johar and others v. Union of India (2018) 10 SCC 1; State of Haryana and others v. Bhajan Lal and Others 1992 Supp (1) SCC 335; State of Karnataka v. I. Muniswamy and others (1977) 2 SCC 699; Arnesh Kumar v. State of Bihar and another (2014) 8 SCC 273; Shakson Belthissor v. State of Kerala and another (2009) 14 SCC 466; Madhavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao Angre and others (1988) 3 SCC 692; Inder Mohan Goswami and another v. State of Uttaranchal and others (2007) 12 SCC 1; Kapil Agarwal and others v. Sanjay Sharma and others (2021) 5 SCC 524; Anand Kumar Mohatta and another v. State (NCT of Delhi), Department of Home and another (2019) 11 SCC 706; T. Barai v. Henry Ah Hoe and another (1983) 1 SCC 177; Yogendra Pal Singh and others v. Union of India and others (1987) 1 SCC 631; Kishorebhai Khamanchand Goyal v. State of Gujarat and another (2003) 12 SCC 274; Harshad S. Mehta and others v. State of Maharashtra (2001) 8 SCC 257;

Para 12. Indeed, the primary argument of the learned counsel for the petitioner was that when Section 375 IPC defines ‘rape’ and also by way of amendment in 2013, Exception-2 has been provided which bespeaks that sexual intercourse or sexual acts by a man with his own wife is not a rape and therefore if any unnatural sex as defined under section 377 is committed by the husband with his wife, then it can also not be treated to be an offence. Secondarily, as per the learned counsel for the petitioner, the impugned FIR is nothing but a malicious prosecution inasmuch as it has been lodged with intent to get ill-gotten gains by extorting money/property due to matrimonial discord between husband and wife; without disclosing any date, time and place of committing offence and also runs short of any explanation about the tardy complaint. Neither the allegations made against the petitioner are specific but are general and omnibus in nature, nor has it been succoured by any encouraging evidence. Thus, the petitioner’s prosecution is apparently an abuse of process of law, which to secure the ends of justice, is liable to be annulled at the threshold. Tertiary, Shri Khandelwal argued that in the facts and circumstances of the case, vis-a-vis the existing legal position when Section 375 defines ‘rape’ specifying the offender and victim, and also the body parts which can be used for committing an offence, but repealing the said provision with regard to relation of husband and wife then doctrine of ‘implied repeal’ would also be applicable considering the unnatural offence.

Para 15. The view taken by the Constitutional Bench of the Supreme Court in re Navtej Singh Johar (supra) observing that due to legislative changes, some of the offences of Section 377 have become redundant and held as under:-

“423 At this point, we look at some of the legislative changes that have taken place in India’s criminal law since the enactment of the Penal Code. The Criminal Law (Amendment) Act 2013 imported certain understandings of the concept of sexual intercourse into its expansive definition of rape in Section 375 of the Indian Penal Code, which now goes beyond penile- vaginal penetrative. It has been argued that if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment. Section 375 defines the expression rape in an expansive sense, to include any one of several acts committed by a man in relation to a woman. The offence of rape is established if those acts are committed against her will or without the free consent of the woman. Section 375 is a clear indicator that in a heterosexual context, certain physical acts between a man and woman are excluded from the operation of penal law if they are consenting adults. Many of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact. This is a violation of Article 14.”

Para 17. In other way, the unnatural offence has not been defined anywhere, but as has been considered by the Supreme Court in the case of Navtej Singh Johar (supra) that any intercourse, not for the purpose of procreation, is unnatural. But respectfully I find that when same act as per the definition of Section 375 is not an offence, then how it can be treated to be an offence under Section 377 IPC. In my opinion, the relationship between the husband and wife cannot be confined to their sexual relationship only for the purpose of procreation, but if anything is done between them apart from the deemed natural sexual intercourse should not be defined as ‘unnatural’. Normally, sexual relationship between the husband and wife is the key to a happy connubial life and that cannot be restricted to the extent of sheer procreation. If anything raises their longing towards each other giving them pleasure and ascends their pleasure then it is nothing uncustomary and it can also not be considered to be unnatural that too when Section 375 IPC includes all possible parts of penetration of penis by a husband to his wife.

Para 20. Indubitably, Shri Sanjay Agrawal, Senior Advocate appearing for respondent No.2 has also relied on the decision of the Supreme Court in re Bhajan Lal (supra) and submitted that in view ofthe contents of FIR, if offence is made out then at pre-trial stage, the FIR cannot be quashed. He pinpointed that allegation of offence under Section 377 IPC is made by respondent No.2 against the petitioner, therefore, FIR cannot be quashed. He also by placing reliance on other decisions submitted that in case of rape, although delay is immaterial and even if delay is unexplained, FIR cannot be quashed. However, in the case at hand, this Court is not delving into delay part nor interfering in the matter on that ground. Although Shri Agrawal has drawn attention of this Court towards the definition of Section 375 of Clause ‘Fourthly” that “With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.”, but in view of the discussion made in foregoing paragraphs and submissions of learned counsel for the petitioner saying that indisputably the petitioner belongs to a tribe and marriage was solemnized according to the custom of tribes under which second marriage is legally permissible, the respective Clause of definition of Section 375 is not attracted. Indeed, the complaint ex facie crystalizes that respondent No.2 stated that she is wife of petitioner and factum of marriage has also been mentioned by her, ergo at such juncture, the application of Clause “Fourthly” Section 375 of IPC is meaningless. As such, his contention with regard to re investigation and filing supplementary charge-sheet under Section 173(8) of CrPC is also insignificant, rather it does not have substance for the reason that even in the statement made before the police, respondent No.2 has stated that the marriage was solemnized as per tribes’ custom.

 Para 21. Considering the overall fact-situation of the case at hand, itis clear that the petitioner and respondent No.2 hold political posts in the same political party; knowing each other since long; prosecutrix entered into marriage with petitioner; their relationship after some time of marriage became estranged; complaints were made by them against each other; the petitioner filed a suit for damages; FIR was lodged by respondent No.2 without disclosing any specific date, time and place of committing alleged offence by the petitioner but only specified that from 15.11.2021 to 16.11.2022 offence was committed whereas during their married time, they visited several places, enjoyed honeymoon, therefore, in my opinion the act of the petitioner is not punitive for the offence punishable under Sections 376(2)(n) and Section 377 of IPC. Quite apart, for constituting offence under Section 498-A IPC, there is no allegation of any demand of dowry. At the most offence under the Domestic Violence Act could have been registered, but that too immediately after commission of such crime. For other offences i.e. Sections 294 and 506 of IPC, no date, place and time has been disclosed and as such the complaint in my opinion is a malicious prosecution filed by respondent No.2 as there was inter se dispute between husband and wife. 22. With above deep contemplation, I allow the petition. Thus, FIR registered vide Crime No.540/2022 at Police Station Naogaon, District Dhar on the fulcrum of a complaint made by respondent No.2 against the petitioner for the offence punishable under Sections 294, 323, 376(2)(n), 377, 498-A, 506 of the Indian Penal Code. is hereby quashed.

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