Advocates:
['Sachin Nidhi', '', 'AJAY CHANDRA CG', 'A G']

1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Proceedings through Video Conferencing

CR.R. No. 177 of 2021

Reserved on 12-8-2021

Delivered on 23-8-2021

1. Dilip Pandey S/o Ambika Prasad Pandey Aged About 37 Years

2. Dinesh Kumar S/o Ambika Prasad Pandey Aged About 41

Years

3. Smt. Varsha Pandey W/o Dinesh Kumar Pandey Aged About 37

Years

All R/o Ward No. 68, New Changorabhatha, Raipur, Near

Guman Sahu Aata Chakki, Raipur, P.S. D.D. Nagar, District

Raipur CG

----Applicant

Versus

State of Chhattisgarh through S.H.O. Police Station Bemetara,

District Bemetara CG

----Non-applicant

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For Applicant

:

Mr. Y.C. Sharma, Sr. Adv. with Shri

Sachin Nidhi, Adv.

For respondent

:

Mr. Devesh Chandra Verma, Govt. Adv.

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Hon'ble Shri Justice

N.K. Chandravanshi

CAV Order

1.

This criminal revision has been preferred by the applicants

against the order dated 22-1-2021 passed in S.T. 5/2021 by the

Addl. Sessions Judge, Bemetara, Distt. Bemetara by which

charges under Sections 498-A, 34, 376 and 377 of the Indian Penal

Code (in short 'the I.P.C.') have been framed against the applicant

No.1 and charge under Section 498-A of the IPC has been framed

against applicants No. 2 and 3.

2.

Brief facts of the case are that marriage of complainant was

solemnized with the non-applicant No. 1 on 8-6-2017. Thereafter,

they resided together. After few days of marriage, the applicants

started harassing complainant on demand of dowry i.e. money and

other articles. The applicants also used to abuse her and commit

marpeet with her. The applicant No. 1/husband many times had

made unnatural physical relation with her. He also inserted his

fingers and radish in her vagina, despite her protest. Efforts were

made to settle their dispute but it went in vein. Therefore,

2

complainant filed written complaint against the applicants at PS

Bemetara. After investigation, charge sheet under Section 498-A,

377, 376, 34 of the I.P.C. was filed against the applicants. After

affording opportunity of hearing to the counsel for both the parties,

learned trial Court framed charges against the applicants as

mentioned above. Hence, this revision.

3.

Learned counsel for the applicants submits that the

complainant and the applicant No. 1 are legally wedded wife and

husband, therefore, none of the ingredients to constitute the offence

punishable under Sections 376 and 377 of the I.P.C. are spelt out

against applicant No. 1, because, in India, marital rape is not

recognized and the same is not an offence in view of Exception II of

Section 375 of the I.P.C. He further submits that carnal intercourse

against the order of nature with any man, woman or animal

voluntarily is necessary ingredient of Section 377 of the I.P.C. which

is not present in this case. Therefore, the order of framing of

charges against the applicant No. 1/ husband under Sections 376

and 377 of the I.P.C. is illegal and erroneous. He further submits

that framing of charge of Section 498-A of the I.P.C. against the

applicants is also not sustainable. Therefore, he prays that the

impugned order be set aside and the applicants be discharged from

aforesaid charges. To buttress his argument, he places reliance in

the order of High Court of Gujrat at Ahmedabad in Nimeshbhai

Bharatbhai Desai -v- State of Gujrat (2018 SCC Online Guj 732).

4.

I have heard learned counsel for both the parties and

perused the impugned order and material available on record as

copy of complete charge sheet has been filed by the applicants.

5.

From perusal of copy of the charge sheet, it is clear that the

applicant No. 1 and complainant are legally wedded husband and

wife and their marriage was solemnized in the mo