IN THE HIGH COURT OF KERALA AT ERNAKULAM
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
1 DHANUS NAIR,
AGED 37 YEARS
S/O SUKUMARAN NAIR,
2 SHYLAJA NAIR,
AGED 54 YEARS, S/O.SUKUMARAN NAIR, SHYLAM VEEDU,
PUTHALATH DESOM, MANJAKALA MURI, THALAVOOR VILLAGE,
3 SUKUMARAN NAIR,
AGED 65 YEARS, S/O.KESAVAN NAIR, SHYLAM VEEDU,
PUTHALATH DESOM, MANJAKALA MURI, THALAVOOR VILLAGE,
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA ,
(CRIME NO. 1006/2016 OF KUNNICODE POLICE STATION,
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:
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
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
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
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
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
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
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
No.784/2017 of the Judicial Magistrate of First Class-III, Punalur stand
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.