BEFORE THE HON’BLE HIGH COURT OF CHHATTISGARH
Name of the parties
Applicants : Dilip Pandey (Dinish Kumar ,Smt. Varsha Pandey )
Non Applicant/Respondent : State of Chhattisgarh
Judge: N.K. Chandravanshi J.
Decided on: August 23 2021
Dilip Pandey (applicant1) and the complainant got married on 8th June 2017, they resided together after marriage. After few days of marriage the complainant was harassed, abused and beaten by the applicant and his family for dowry. The husband (applicant 1) at several occasions had also made unnatural physical relation with the complainant
Both the families took efforts to resolve the dispute but it went in vain. The wife thus filled a complaint against the applicants. And upon further investigation a charge sheet was filed under Section 498-A, 377, 376 and 34 of the I.P.C..
The trial court after hearing the counsel for both parties framed charges against the applicants in the mentioned sections.
This criminal revision is thus preferred by the applicants against this order of the Trial court.
• Whether an infirmity or illegality was committed by trial Court in framing the charge under Section 34, 376,377 and 489 A?
• Can a husband be framed under section 376 if the forceful intercourse was with his own wife?
CONTENTION OF PARTIES
The counsel had started by stating that the applicant 1 and the complainant are legally wedded husband and wife. The applicant 1 cant be framed under 376 as marital rape isn’t recognized in India. The council further submitted that to establish section 377 one of the necessary ingredients is that the carnal intercourse against the order of nature must have been done voluntarily, which isn’t present in this case.
The council representing the state had not made any substantial arguments. The council had pleaded to not discharge the applicants of the charges framed against them
The single bench jury in this case after examining the facts and evidences had discharged applicant no 1 for charges under section 376 of the IPC. And also affirmed that there was no illegality committed by the learned trial court in framing of the applicants under the remaining three sections of I.P.C..
The revision was partly allowed
The court gave the following reasoning to justify its decision:
Charges under section 376:
Rape is described under section 375 of the Indian penal code. Exception 2 of the section provides that if the intercourse was between legally wedded husband and wife then it won’t constitute to rape even if it was forceful.
From the charge sheet presented before the court it is evident that the complainant and the applicant are legally wedded husband and wife. Thus the sexual intercourse or any sexual act committed by the husband (applicant 1) with the complainant won’t constitute to the offence of rape. Thus the applicant 1 was discharged from the charges framed against him under section 376
Charges under section 377:
Section 377 of the IPC deals with unnatural physical relation, in the case of Momina begum(supra) it was held that in terms of section 377 if the dominant intention of an offender was to derive sexual satisfaction in an unnatural way then such an act of the offender shall be made liable under this section.
Consent is not a determining criterion in the case of unnatural physical relations; any offence against the order of nature can be deemed to be as carnal penetration and would constitute to be an offence under section 377
In this present case the wife has claimed that the husband many times had made an unnatural physical relation with her against her will.
The dominant intention of the offender was to derive unnatural sexual satisfaction repeatedly inserting any object in the sex organ of the victim this act would constitute as a carnal intercourse against the order of nature.
The court thus held that no infirmity or illegality committed by learned trial Court in framing the charge under Section 377 of the I.P.C. against the applicant 1 husband.
Charges under section 498 A and 34
Section 34 deals with common intention. And section 498 A deals with the harassment of the wife by her husband or husband’s relatives.
In this case based on the facts. As well as the written report and statements by the complainant. It is evident that the complainant after just few days of marriage was subjected to cruelty by all three applicants. She was harassed as well as beaten on demand for dowry
This statement has been supported by the parents of the complainant. The neighboring witnesses have also stated it in their police statements.
The court thus did not find any infirmity in framing charges under Section 498-A/34 of the I.P.C. against the applicants.