IMPORTANT POINT
If a man and a woman indulged in anal sex with their free consent in private, no offence under Section 377 IPC is made out.

JUDGMENT

Ravindra Maithani, J.—The challenge in this petition is made to the charge-sheet and summoning order dated 08.04.2019, passed by the court of FTC/Additional Sessions Judge/Special Judge (POCSO) Haridwar, in Special Sessions Trial No.48 of 2019, State Vs. Dr. Kirti Bhushan Mishra (“the case”), under Section 377 IPC and Section 11/12 of the Protection Of Children From Sexual Offences Act, 2012 (“the POCSO Act”), which is based on FIR No.97 of 2017, under Section 377 IPC and Sections 11/12 of the POCSO Act, Police Station Kotwali Roorkee, District Haridwar.

2. Heard learned counsel for the parties and perused the record.

3. The case is based on an FIR, lodged by the respondent no.2 against the petitioner. According to the prosecution case, the petitioner and the respondent no.2 were married on 08.12.2010. But, after marriage, the petitioner continued committing carnal intercourse against the order of nature with the respondent no.2, due to which, she sustained serious internal injuries with bleedings. But, the petitioner continued anal sex with her. The respondent no.2 was to be admitted in one Harihar Hospital Balangir. Even thereafter, the petitioner did not stop doing it and continued anal sex with the respondent no.2. When the respondent no.2 received serious internal injuries, she was admitted in FORTIS Jindal Hospital, Raigarh, Chhattisgarh. Surgery was suggested, but it was not conducted by the petitioner and he continued with such an act. In fact, it is the case of the prosecution that after one month of marriage, the petitioner left for Germany, where he was working at the relevant time and three months thereafter, the respondent no.2 also joined his company. But, due to harassment, forcible anal sex, physical assault, etc., the respondent no.2 came back to India in the month of October, 2013 and stayed in a house built by the petitioner in Chhattisgarh. In July, 2015, the petitioner was appointed in IIT Roorkee, District Haridwar.

4. It is the further case of the prosecution that in Germany, the respondent no.2 was much harassed by the petitioner. He had relations with many women. He would show bad scenes on his laptop to his child of 8 to 10 months, so that the respondent no.2 could succumb to his demands. The respondent no.2 suffered physically. She was beaten up. In Roorkee also, the harassment continued, sexual abuse became in abundance. The police was also reported. Quite often the petitioner would leave the house. He would behave in a very weird manner. He would throw things in the house. He would urinate in front of the room. He would show his private part to the young child. He continued anal sex with the respondent no.2, due to which, she again sustained injuries. She was shown to the doctor also at Roorkee. The FIR is quite in detail. It is this FIR, in which, after investigation chargesheet has been submitted against the petitioner. On 08.04.2019, cognizance has been taken, which is impugned in the instant petition.

5. Learned counsel for the petitioner would submit that no offence, as such is made out against the petitioner; the cognizance order is bad in the eyes of law and deserves to be set aside. He would raise the following points in his submissions:-

a) Rape has been defined under Section 375 IPC. The amended definition of rape which came into force w.e.f. 03.02.2013 includes the act, which is otherwise offence under Section 377 IPC. But, being a husband the petitioner cannot be made liable for it in view of Exception 2 to Section 375 IPC.

b) In the case of Navtej Singh Johar and others vs. Union of India, (2018)10 SCC 1, the Hon’ble Supreme Court has held that under Section 377 IPC consensual acts of adults in private is not an offence; there is nothing like unnatural sex or intercourse against the order of nature. It is argued that in case of married couple the consent of sex is informed and it is not required on each occasion. Therefore, offence under Section 377 IPC is not made out aga