ORDER

This is first application under section 439 Cr.P.C. for grant of regular bail to the applicant in connection with FIR No. 129/2024 dated (not mentioned) registered at P.S. Khargone, district Kotwali for the offence punishable under sections 498-A, 323, 294, 377, 506/34 of IPC and section 3/4 of Dowry Prohibition Act.

2. As per the prosecution case, prosecutrix got married on 15.3.2023. Parents of the prosecutrix gave valuable gifts to the husband Imran/present applicant and his family members. After 5-6 days of marriage, the accused persons started harassing the prosecutrix mentally and physically. The prosecutrix was subjected to physical assault by the applicant. It is alleged that applicant committed unnatual offence upon the prosecutrix against her will and made video of the said act. Her father-in-law and brother-in-law used to touch her inappropriately. It is also alleged that applicant used to demand dowry of Rs. 5 Lacs from the prosecutrix. Thereafter the prosecutrix left her marital home and went to her parents home whereby the applicant used to pressurize her for compromise by threatening her to viral her inappropriate videos made by the applicant. A few days before the complaint was made, on 1.2.2024, the applicant came to the house of prosecutrix armed with knife and threatened her. Thereafter the prosecutrix made a written complaint at P.S. Khargone and subsequently an FIR was registered against the aforementioned sections.

3. Counsel for the applicant submits that applicant is husband of the complainant and complainant is more than 15 years, therefore the offence under section 377 IPC would not be made out. As per allegation of the complainant, at the most the offence under section 498-A IPC would be made out. In support of his submission, he has placed reliance on an order passed by the co-

ordinate Bench in the case of Umang Singhar Vs. State of M.P., 2023 SCC Online MP 3221 and also the order passed by co-ordinate Bench in the case of Manish Sahu Vs. State of M.P. in M.Cr.C.No. 8388/2023 dated 1.5.2024. The coordinate Bench in the case of Manish Sahu, considering the provisions of Section 377 of IPC held that any unnatural intercourse even without consent of the wife would not amount to unnatural offence under Section 377 of IPC.

Relevant para-17 of the said judgment is reproduced as under:-

17. Thus the consent of both the parties is necessary for taking the act out of the purview of Section 377 of IPC. However, this Court after considering the amended definition of "rape" as defined under Section 375 of IPC has already come to a conclusion that if a wife is residing with her husband during the subsistence of a valid marriage, then any sexual intercourse or sexual act by a man with his own wife not below the age of fifteen years will not be rape. Therefore, in view of the amended definition of "rape" under Section 375 of IPC by which the insertion of penis in the anus of a woman has also been included in the definition of "rape" and any sexual intercourse or sexual act by the husband with her wife not below the age of fifteen years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance. Marital rape has not been recognized so far.

4. Counsel for the State and the Objector opposed the prayer and submitted that investigation is still not complete and chargesheet is not filed. Counsel for the objector further submits that complainant is receiving threat by the present applicant.

5. After hearing learned counsel for the parties and considering the amended provisions of Section 375 of IPC where it has been prescribed that a man is said to commit rape if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person and also considering Exception 2 that sexual intercourse or sexual acts by a man with his own wife, who is not below the age of 15 years is not a