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Dhanus Nair vs State Of Kerala on 29 October, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940

Crl.MC.No. 6575 of 2018

AGAINST THE ORDER/JUDGMENT IN CC 784/2017 of J.M.F.C.-III, PUNALUR

CRIME NO. 1006/2016 OF Kunnicode Police Station , Kollam

PETITIONER/S:

1 DHANUS NAIR,
AGED 37 YEARS
S/O SUKUMARAN NAIR,
SHYLAM VEEDU,
PUTHALATH DESOM,
MANJAKALA MURI,
THALAVOOR VILLAGE,
KOLLAM.

2 SHYLAJA NAIR,
AGED 54 YEARS, S/O.SUKUMARAN NAIR, SHYLAM VEEDU,
PUTHALATH DESOM, MANJAKALA MURI, THALAVOOR VILLAGE,
KOLLAM.

3 SUKUMARAN NAIR,
AGED 65 YEARS, S/O.KESAVAN NAIR, SHYLAM VEEDU,
PUTHALATH DESOM, MANJAKALA MURI, THALAVOOR VILLAGE,
KOLLAM.

BY ADVS.
SRI.S.RAJEEV
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY

RESPONDENT/S:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
Crl.M.C.No.6575/2018 2

HIGH COURT OF KERALA ,
ERNAKULAM-682031
(CRIME NO. 1006/2016 OF KUNNICODE POLICE STATION,
KOLLAM DISTRICT).

2 VIDHYA NAIR,
AGED 34 YEARS, D/O.BALASUBRAMANIAN, SHYLAM,
MANJAKKALA, KUNNIKODE, NOW RESIDING AT K-41,
MEVANANDAN APARTMENT, NEAR CHANAKUYAPURI BRIDGE,
GHATLODRA, AHMEDABAD-380 061.

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.10.2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

The petitioners herein are accused Nos. 1 to 3 in Crime No.

1006/2016 of Kunnikode police station for offences punishable under

sections 498(A), 323,376,377 read with section 34 IPC. The matter is

now pending as CC No. 784/2017 of the Judicial Magistrate of First

Class-III, Punalur.

2. According to the prosecution allegation, the first petitioner

married the second respondent as per the religious rites at a temple on

13/7/2014. The second and third petitioners are the parents of the first

petitioner. They lived at various places thereafter, abroad. In 2016, she

laid an FIS alleging that, she was subjected to matrimonial cruelty by the

petitioners and that she was raped and unnatural offences committed on

her during the initial period of matrimonial relationship. Pursuant to the
Crl.M.C.No.6575/2018 3

investigation done, final report was laid for offences as mentioned above.

3. Claiming that pending the proceedings, parties have settled

their disputes and that the second respondent has no objection in

quashing the proceedings, the petitioners have approached this court.

They relied on Annexure-II affidavit affirmed by the defacto complainant.

4. Learned counsel for the second respondent endorsed Annexure-

II affidavit and submissions made by the learned counsel for the

petitioners at the time of hearing.

5. Since the offence alleged is one under section 376 IPC, this

court was not inclined to quash the proceedings on consent. Hence, the

learned counsel for the petitioners chose to argue the matter on merits.

6. Learned counsel for the petitioners invited my attention to the

charge wherein it was alleged that, the first petitioner committed rape of

her in the year at Chennai, Ethiopia, Kovalam, Kodaikanal and

Ahmadabad. The period of alleged commission of rape extended to

6/7/2015. There is further allegation that, 2 nd and 3rd petitioners harassed

her in connection with demand for dowry and demanded gold and cash. It

was pointed out by the learned counsel that, voluntary physical

relationship between the husband and wife was styled as one of rape

much later. It was contended that, there was huge delay in moving the

police with an allegation of rape and unnatural offence. Learned counsel

for the petitioner invited my attention to explanation 2 to section 375 IPC

which originally provided that sexual intercourse or sexual acts by a man
Crl.M.C.No.6575/2018 4

with his own wife, the wife not being under 15 years age was not rape.

This court had occasion to deal with the dichotomy in the age factor in a

Division Bench decision in Dr.Vincent Panikulangara v. Union of

India(2015 (4) KLT 754). At paragraph 4 it was held that restrictions

imposed under Prohibition of Child Marriage Act,2006 or the statutes in

this regard which legalises the marriage between the male and female,

only if the male is 21 years and female is 18 years of age, cannot be

related to an offence of rape. Inotherwords, the restrictions imposed by

the statute for a legal marriage cannot be equated with a penal provision

under the IPC.

7. In Independent Thought v. Union of India and

Another[(2017) 10 Supreme Court Cases 800), the Hon’ble Supreme

Court held that Explanation 2 to section 375 should be read down to

interpret as 18 years and not 15 years. It was clarified that this

interpretation was only prospective and does not affect the marital rape.

8. The allegations under sections 376 and 377 come only in the year

2016, after a considerable time and only when she raises a complaint of

matrimonial cruelty against the petitioners. This cast serious doubt on

her allegation that physical relationship that she had with the husband

were without her consent. She had no such allegation at any earlier

point of time. Learned counsel for the petitioner points out that under

section 198(6) Cr.P.C. there was a bar in taking cognizance of offence

under section 376 IPC, where such offence consisting of sexual
Crl.M.C.No.6575/2018 5

intercourse by a man with his own wife being under the age of 18 years,

if more than one year has lapsed from the date of commencement of

offence. Definitely, in the case at hand, the wife had crossed the age of

18 years. It was also pointed out that regarding the cognizance of

offence, there is a bar under section 198B. It provides that, no court shall

take cognizance of offence punishable under section 376B of IPC where a

persons are in marital relationship except upon prima facie satisfaction

of the facts which constitute the offence upon a complaint having been

filed or made by the wife against the husband. Considering this legal

embargo, there seems to be substantial defect in the present

proceedings.

9. This court in Sreekumar v. Pearly Karun (1999 KHC 112)

held that where the wife voluntarily stayed with the husband, subject to

sexual intercourse during the period, held to be no offence under section

376 IPC.

10. Taking cue from the above decisions and the legal expositions

as mentioned above, I find that offence under sections 376 and 377 IPC

are legally unsustainable against the petitioners herein. All other

disputes have been settled between the parties.

11. Totality of the above discussions lead to the conclusion that the

prosecution as against the petitioners herein in CC No.784/2017 of

Judicial Magistrate of First Class-III, Punalur is liable to be quashed.

Accordingly, Crl.M.C.is allowed. All further proceedings in CC
Crl.M.C.No.6575/2018 6

No.784/2017 of the Judicial Magistrate of First Class-III, Punalur stand

quashed.

Sd/-

SUNIL THOMAS

dpk JUDGE
Crl.M.C.No.6575/2018 7

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE I: CERTIFIED COPY OF THE FINAL REPORT IN CC
NO.784/2017 ON THE FILE OF THE JUDICIAL
MAGISTRATE OF FIRST CLASS-III, PUNALUR.

ANNEXURE II: NOTARISED AFFIDAVIT DATED 31.08.2018
SWORN BY THE 3ND RESPONDENT.

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