Advocates:
['D C S RAWAT', '', 'ANKURIT RAJ DAVID', 'G A', 'P C PETSHALI']

HI GH COURT OF UTTARAKHAND

AT NAI NI TAL

Cr im in al Misc. Applicat ion No. 2 7 2 of 2 0 1 8

(Under Section 482 of Cr.P.C.)

Subhan Ali

… Applicant

Vs.

State of Uttarakhand and Others

… Respondents

Advocate:

Mr. D.C.S Rawat, Advocate, for the applicant.

Mr. T.C. Aggarwal, Deputy Advocate General, assisted by Ms.

Lata Negi, Brief Holder, for the State.

Mr. P.C. Petshali, Advocate, for the complainant

Hon ’ble Sh ar ad Ku m ar Sh ar m a, J.

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 3^rd 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 “ w om an ” to be in

2

persistent vegetative state. The word “ w om an ” 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: -

W om an . 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 ‘w ife’ has been defined as under: -

‘W ife’ 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

3

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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