ORDER

This is first bail application under Section 438 of Cr.P.C for grant of anticipatory bail in connection with crime No.111/2024 dated : (not mentioned), registered at P.S. - Sonkatch, District - Dewas for offences punishable under Sections 377, 294, 323, 506, 354, 34 of IPC.

2. As per the prosecution case, a report has been lodged by the wife of the applicant alleging that the applicant had come in the room in a drunken condition and abused her and thereafter made unnatural intercourse from anus.

3. Counsel for the applicant submits that the complainant is a major woman and as per the amended definition of Section 375 of IPC and exception 2 of the said section, alleged unnatural sexual intercourse with the major wife, no offence under Section 377 of IPC shall be made out. In support of his submissions, he has placed reliance on the judgment passed by Coordinate Bench in the case of Umang Singhar vs. State of MP, 2023 SCC OnLine MP 3221 and also the order passed by Coordinate Bench in the case of Manish Sahu vs. State of MP in MCRC No.8388/2023 dated 01.05.2024 . A 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:-<br/>

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 submits that the aforesaid judgments are passed in a petition under Section 482 of Cr.P.C. seeking quashment of the FIR.

5. After hearing learned counsel for the parties and considering the (VIJAY KUMAR SHUKLA) JUDGE 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 rape. Considering the same, sexual unnatural intercourse with a major wife do not constitute the definition of the rape and, therefore, the offence under Section 377 of IPC would also not be made out. Following the law laid down in the case of Umang Singhar (supra) and Manish Sahu (supra), this Court finds that prima facie case is made out for grant of anticipatory bail.

6. It is directed that in the event of arrest, applicant - Mahendra Singh shall be released on bail on furnishing a personal bond in a sum of Rs.50,000/-

(Rs. Fifty Thousand Only) with one surety in the like amount to the satisfaction of arresting officer on following conditions:-

(a) The applicant shall not approach and influence the prosecutrix.

(b) The applicant shall cooperate with the investigation.

The applicant shall further abide by the other conditions enumerated in sub-section (2) of Section 438 of Cr.P.C.

7. A typed copy of this order is being forwarded to the Office of the Advocate General, on their email address, for intim