Marital rape has not been recognized under the amended definition of 'rape' in Section 375 of IPC, and the absence of consent of the wife for unnatural sex loses its importance.

ORDER

This application under Section 482 of Cr.P.C. has been filed seeking following relief(s):-

"It is therefore, most humbly prayed that in the interest of justice the Hon'ble Court may kindly be pleased to call for the record of the matter and after examining the same be further pleased, be kind enough to allow this petition and quash and set aside first information report vide crime no.377/2022 for offence under section 377, 506 I.P.C. at P.S. Kotwali Jabalpur pending before Add. Session Court P.O. Shri Jai Singh Saraute in ST No.642/2022 (State versus Manish Sahu), in the ends of law."

2. It is the case of prosecution that respondent No.2 lodged the FIR against the applicant on 24/08/2022 at Police Station Kotwali, District Narsinghpur for offence under Sections 377, 506 of IPC. The said FIR was registered at '0' and was transferred to Police Station Kotwali Jabalpur, District Jabalpur. It was alleged by respondent No.2 that she got married to the applicant on 18/05/2019 in accordance with Hindu rites and rituals. They are not blessed with any child. She was being harassed by her in-laws physically and mentally on account of non- fulfilment of demand of dowry and accordingly, from 14/02/2020 she is residing in her father's house and accordingly, she has lodged a report for cruelty for which trial is pending. It was further alleged that after her marriage, when respondent No.2 went to her matrimonial house for the second time, then in the intervening night of 06/06/2019 and 07/06/2019 applicant had committed unnatural sex with her and thereafter on multiple occasions, he committed unnatural sexual intercourse with her and had also extended a threat that in case if information in this regard is given to anybody, then he would divorce her. Just in order to save her self-respect, she was continuously tolerating the unnatural act of her husband and did not make the aforesaid allegations in her first report. It was alleged that today she has come to lodge the FIR because her case was listed before the Family Court and she did not attend the said proceedings because on the previous date i.e. 18/07/2022, applicant had extended a threat that in case if she meets him, then he would commit the same offence. When she was crying after remembering the old memories, then on the query raised by her mother, she informed her about the unnatural sex committed by her husband and therefore, the FIR is being lodged.

3. Challenging the FIR lodged by respondent No.2, it is submitted by counsel for the applicant that applicant and respondent No.2 are husband and wife. Any unnatural sex between husband and wife is not an offence under Section 377 of IPC. Furthermore, respondent No.2 did not make these allegations in her first report and the second report with regard to commission of unnatural sex has been levelled in order to make the offence non-cognizable.

4. Per contra, application is vehemently opposed by counsel for respondent No.2. It is submitted that an unnatural sex with his own wife is an offence punishable under Section 377 of IPC and therefore, Police has rightly filed the charge-sheet for the said offence.

5. Considered the submissions made by counsel for the parties.

6. The pre-amended definition of "rape" as given under Section 375 of IPC reads as under:-

"375. Rape.- A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

First.-

Against her will.

Secondly.- Without her consent. Thirdly.-

With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- 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.

Fifthly.-

With her consent when, at the time of giving such consent, by reason of unsoundn