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Anticipatory bail can be granted to husband u/s Sections 498-A, 376 and 377, IPC ?


S.B. Criminal Misc. Bail Application No. 12230 of 2015
Decided On: 30.10.2015

Yashasvi Kant Kumar
State of Rajasthan
Coram:Prashant Kumar Agarwal, J.

Citation;2016 CRLJ 1766

1. Apprehending his arrest, the accused-petitioner has filed this application for grant of anticipatory bail under Section 438, Cr.P.C. in respect of FIR No. 115/2015 registered at Mahila Thana, Jaipur City (North), Jaipur for the offences under Sections 498-A, 376 and 377, IPC. The allegation against the petitioner is that he had sexual intercourse and unnatural intercourse with the complainant without her consent and against her will. It is to be noted that, although the complainant admits that marriage between her and the petitioner took place in accordance with the ceremony of Arya-Samaj on 9-1-2015, but at the same time it is her stand that legal marriage between them was to be performed in accordance with the social customs and usages, but the petitioner refused to do so. The application filed by the petitioner for grant of anticipatory bail has been dismissed by the Additional Sessions Judge (Women Atrocities Cases) No. 2, Jaipur Metropolitan, Jaipur vide order dated 14-9-2015. It was submitted by the learned counsel for the petitioner that in view of the fact that the complainant is legally married wife of the petitioner of the age of more than 15 years, petitioner was entitled to have sexual intercourse as well as every type of physical relation with her and for the sake of arguments, if the allegations made against the petitioner are taken to be true and correct, even then no offence punishable under Section 376, IPC is made out against the petitioner as the case comes within the four-corners of Exception 2 to Section 375, IPC. It was further submitted that although after amendment in Section 375, IPC w.e.f. 3-2-2013, definition of “rape” has been elaborately widened and not only sexual intercourse by a man with a woman but several other kind of acts are also included within the definition of rape but as per Exception 2 to this provision, sexual intercourse or any other kind of sexual acts by husband with his own wife, if her age is not below 15 years, do not amount to rape. It was submitted that any sexual act even in unnatural manner by husband with his wife does not come within the purview of offence as provided under Section 377, IPC. According to learned counsel for the petitioner-husband is legally entitled to perform any type of sexual activity with his wife and such activity does not amount an offence within the provisions of IPC. It was also contended that no medical evidence could be collected during the course of investigation showing even prima facie that any unnatural physical act was performed with the complainant.

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2. On the other hand, learned Public Prosecutor submitted that in view of the amended Section 375, IPC, the alleged unnatural physical act of the petitioner with the complainant comes within the purview of “rape” and is accordingly punishable under Section 376, IPC. It was further submitted that otherwise also the alleged act on the part of the petitioner is offence under Section 377, IPC and, therefore, looking to the gravity of the offence the petitioner is not entitled to get benefit of anticipatory bail. It was also submitted that a man can have sexual intercourse with his legally married wife, if her age is not below fifteen years but he is not entitled to have any kind of physical relation even with his wife, if such relation is against the order of nature.

3. I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the evidence so far collected during investigation which has been produced before the by way of case diary and the relevant legal provisions.

4. With effect from 3-2-2013, Section 375, IPC has elaborately been amended and now penetration by a man of his penis to any extent into the vagina, mouth, urethra or anus of a woman amounts to “rape”. Thus, according to amended provision not only the “sexual intercourse” by a man with a woman in the form of penetration of penis into vagina of the woman is rape, but such penetration into mouth or anus of such woman also amounts to rape and such act is also punishable under Section 376, IPC. As per Exception 2 to Section 375, IPC, sexual intercourse or sexual acts by a man with his own wife, if the wife is not below the age of 15 years, is not rape. What this exception provides is “sexual intercourse” or “sexual acts” only by husband with his own wife but not any other act as provided in amended provision of Section 375, IPC. The meaning of “sexual intercourse” is physical activity of sex, usually describing the act of a man putting his penis inside the woman’s vagina. Although, in exception 2, words “sexual intercourse” and “sexual acts” have separately been used but in my opinion the words “sexual acts” must also carry the same meaning as words “sexual intercourse” carry. The background and the context in which Section 375, IPC has been amended and the words “sexual act” have been used in this provision, it must be interpreted to have the same meaning which the words “sexual intercourse” carry. In view of the above, submission made on behalf of the petitioner that any alleged act on the part of the petitioner with the complainant, his wife, does not amount to rape, cannot be accepted.

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5. Even if for the sake of arguments, it is held that the alleged act of the petitioner does not amount to rape even under the aforesaid amended provision by the reason that the complainant happens to be his wife, but his act prima facie amounts to an offence under Section 377, IPC which provides for voluntary carnal intercourse against the order of nature with any woman also. In my considered view, any woman includes wife of a man also more particularly in view of the fact that in this provision, there is no such exception as provided in Section 375, IPC. Consequently, looking to the gravity of the offence, but without expressing any final opinion on the merits and demerits of the case, I do not find it a fit case in which anticipatory bail is to be granted to the petitioner. The application for grant of anticipatory bail under Section 438, Cr.P.C. is, hereby, dismissed.

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