In a marital relationship, consent is implied, and Section 377 IPC does not apply to consensual sexual acts between spouses.

JUDGMENT

DR. SWARANA KANTA SHARMA, J

1. By way of this revision petition, the petitioner seeks setting aside of the order dated 16.02.2023 [hereafter 'impugned order'] passed by learned Additional Sessions Judge (FTSC)(RC), Rohini Courts, Delhi [hereafter 'Sessions Court'] in case arising out of FIR bearing no. 165/2023, registered at Police Station Vijay Vihar, Delhi.

FACTUAL BACKGROUND

2. The petition has been preferred in the following factual context: a complaint was lodged by the complainant i.e., wife of the petitioner, wherein it was stated that marriage between them was solemnized on 19.02.2022 as per Hindu rites and ceremonies, and her family had allegedly spent approximately Rs.25 lakhs on the marriage. As alleged, on the very first night, the complainant discovered that her husband i.e. the petitioner was unable to consummate the marriage, even after taking medication. Even during their stay in Manali for their honeymoon, the situation remained unchanged. When she had informed the same to her in-laws, they had refused to do anything and in fact, she was informed by her sister-in-law that the family was already aware of her husband's alleged impotency prior to the marriage. When the petitioner had again confronted her in-laws, she was allegedly physically assaulted by them. She had then gone back to her parental home on 24.07.2022. It is alleged that on 19.03.2023, when she was alone at her home, her father-in-law had visited her home, molested her, attempted to rape her, and fled after issuing threats to her. Subsequently, a relative who had arranged their marriage had contacted her father-in-law to suggest to the complainant to return to the matrimonial home. Upon being questioned by her mother, the complainant had disclosed the attempted sexual assault and expressed fear due to the threats received. The complainant alleged that the marriage was a conspiracy by her husband and father-in-law to establish illicit relations and extort money from her family. On these allegations, the FIR was initially registered for commission of offence under Sections 354/354B of the Indian Penal Code, 1860 [hereafter ' IPC '].

3. During the course of investigation, the statement of the complainant under Section 164 of the Code of Criminal Procedure, 1973 [hereafter ' Cr.P.C .'] was recorded, wherein the complainant reiterated the above allegations and further alleged that one day at her matrimonial home, when she was in the kitchen, her brother-in-law Ravi Kant had come there and held her tightly from the chest and waist and kissed her on her neck. She further alleged that on 19.03.2023, her father-in-law Rajpal Singh had, in fact, forcefully established physical relations with her. The complainant also stated that initially, when she had gone for honeymoon to Manali, oral sexual intercourse had taken place between her and her husband (petitioner herein). After completion of investigation, the police had filed chargesheet for offence under Sections 354/354B/376/377/323 of IPC , against the accused persons Ravi Kant, , Rajpal al Singh, Bharti, and Khamoush Devi.

4. After hearing arguments on charge, the learned Sessions Court was pleased to discharge all the accused persons, except the petitioner . Thus, vide impugned order 16.02.2023, the e learned Sessions Court found the petitioner liable to face trial for offence under Section 377 of IPC , for the following reason:

"As against the accused husband Sunny Kant, there are clear allegation that he did oral sex with the prosecutrix against her consent. Accordingly in the considered opinion of this court, charge u/s 377 IPC is made out against him".

SUBMISSIONS BEFORE THE COURT

5. The learned counsel appearing for the petitioner assails the aforesaid order and argues that the same is legally unsustainable, misconceived, and contrary to the settled principles of law as well as the facts on record. It is argued that the statement recorded under Section 164 of Cr.P.C . does not disclose the c