The main legal point established in the judgment is the distinction between Section 376A and Section 376B of the IPC, their specific intent and social purpose, and the requirement for the court to apply its mind before taking cognizance of a case.

JUDGMENT :

A very peculiar and a distinct situation, which has emerged for consideration is in the light of the arguments which has been extended by the learned counsel for the applicant, that the cognizance, which has been taken by the Court of Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar, for the offences under Section 376A of the IPC as against the present applicant by way of registration of Criminal Case No. 3954 of 2017, State Vs. Subhan Ali, is apparently not made out, and the entire investigation is vitiated from its inception.

2. The argument of the learned counsel for the applicant, is that the provisions contained under Section 376A, was substituted by Section 9 of Act No. 13 of 2013 w.e.f. from 3rd February 2013. As an effect of substitution of Section 376A, would only be attracted in those cases where on account of an act of an offence under Section 376 (2) of the IPC, it results into causing of death of a woman or causes a “woman” to be in persistent vegetative state. The word “woman” used herein under Section 376A would be a general term, the literal meaning of which as per the Oxford English dictionary would mean as under:-

Woman. An adult human female a female worker or employee the phrase a little woman condescending by way of reference to one’s wife. It means a female scholar or author woman of the streets, the term woman specified would mean belonging to a group having a specified gender generally recognized by a society.

3. Whereas under literal meaning, would be a spouse, having legally married to man, recognized by the society to be a female who is legally entitled to bear a child, in a biological act of procreation. Thus in the dictionary ‘wife’ has been defined as under:-

‘Wife’ means a married woman considered in relation to her husband. This term would be a specific denomination to a female who is a social bond permanently attached in a relationship to a man.

4. It has been argued by the learned counsel for the applicant, that under either of the circumstances the offences under Section 376A, would not be made out against the applicant as the legislature has used the word ‘woman’, and the woman herein cannot be substituted to be read as ‘wife’.

5. As the factual drop of the present case goes it is that the complainant respondent No. 3, herein admittedly was a married wife of the present applicant, there had been a valid divorce between them and as per the allegations levelled in the FIR, it is contended by the complainant respondent No. 3 herein, that under an assurance to re-marry, the ex-husband i.e. the applicant herein, had committed an offence of sexual intercourse without her consent and in that eventuality, it was alleged that he was liable to be punished for the aforesaid offences as contained under Section 376A for which the FIR was got registered, being FIR No. 294 of 2017 at P.S. Chowki Basfodan, Tehsil, Kashipur, district Udham Singh Nagar.

6. A reference to the contents of the FIR becomes relevant for consideration, because it deciphers the fact of marriage, the fact of commission of offence and the fact of a discontinuance of relationship of husband and wife.

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