A legally wedded husband cannot be charged with rape under IPC if the sexual intercourse is consensual, as per Exception 2 of Section 375 IPC.

JUDGMENT

VIKRAM NATH, J.

1. Leave granted.

2. The instant appeal has been preferred against the order dated 22.08.2023 passed by the High Court of Punjab and Haryana in CRM-M-No. 41161 of 2023 wherein the accused-appellant’s petition under Section 482 of the Criminal Procedure Code, 1973 [Cr.P.C.] seeking quashing of the FIR No. 148 dated 14.06.2022 under Section 366, 376 and 506 of Indian Penal Code, 1860 [IPC] was dismissed.

3. Brief facts of the matter are that Respondent No. 2 is the complainant and cousin of Respondent No. 3/victim and FIR No. 148 of 2022 was lodged by him stating that the victim who was working at National Insurance Company and was dropped at her office by the complainant on the morning of 13.06.2022. It was stated in the FIR that she had left her office at around 1.30 p.m. that afternoon and when she did not return, the complainant feared that she has been abducted by the appellant herein who was alleged to be harassing her for the past few days. Thus, the said FIR was lodged under Section 366 of IPC against the appellant.

4. Whereas, it was the case of the appellant that the appellant and Respondent No. 3 had married each other on 15.06.2022 as per Sikh rites and ceremonies against the wishes of the relatives of the Respondent No. 3 and hence, the said FIR has been lodged against him which deserves to be quashed. The appellant had also stated that post their marriage in view of the opposition by the family members of the Respondent No. 3, the couple had also filed a protection petition being CRWP No. 5913 of 2022 dated 16.06.2022 before the High Court seeking protection of their life and liberty. The said relief was granted by the High Court vide order dated 21.06.2022.

5. However, the Respondent No. 3 allegedly returned to her parental home on 31.08.2022 which had also led to the appellant filing a Petition under Section 9 of the Hindu Marriage Act, 1955 before the Family Court seeking restitution of conjugal rights with his legally wedded wife, i.e. the Respondent No. 3.

6. In the meanwhile, the Respondent No. 3 on 01.09.2022 recorded a statement under section 164 of the Cr.P.C, with the Ld. JMFC raising allegations of rape against the appellant and also alleged that the marriage has been solemnised forcibly by the appellant. It was further alleged that mother and brother of the appellant had also assisted the appellant in the commission of said crimes. Accordingly, the names of brother and mother of the appellant were also added to the FIR along with addition of Sections 363, 120B and 376 of IPC.

7. Accordingly, the Special Investigation Team [SIT] consisting of Superintendent of Police, Hoshiarpur, Deputy Superintendent of Police-Crime against Women and Children, Hoshiarpur and Deputy Superintendent of Police-Sub Division City Hoshiarpur had conducted investigation in the matter and filed an inquiry report. In furtherance of the inquiry report, the police filed the challan dated 01.07.2023 under Section 173 of Cr.P.C. which stated that from the investigation conducted by SIT, allegations levelled by the victim against Kuldeep Singh regarding kidnapping and pressurizing her for marriage have not been proved as it was found that the victim has solemnised the marriage with the appellant with her own consent. It was also found that no role can be attributed to the mother or brother of the appellant and hence they were completely exonerated as no evidence could be collected against them. As such, Section 366 of IPC was deleted and only Sections 376 and 506 of IPC survived against the appellant as per the chargesheet.

8. Thereafter, the appellant had preferred CRM-M-No. 41161 of 2023 dated 18.08.2023 before the High Court seeking quashing of FIR No. 148 of 2022 and all consequential proceedings. The High Court, vide the impugned order, had dismissed the appellant’s petition while holding that the petition lacked any merit and the matter required evaluation of evidence and adjudication by the Trial Court.

9. Aggrie