Published on: October 10, 2023 at 00:01 IST
Court: High Court of Madhya Pradesh
Citation: Umang Singhar V. State of M.P. (2023)
Honourable High Court of Madhya Pradesh has held that Husband cannot be prosecuted for the offence of Rape as punishable under Section 376 of the Indian Penal Code, 1860 and Unnatural Sex as punishable under Section 377 of the Indian Penal Code, 1860 as the Rape as defined under Section 375 of the Indian Penal Code, 1860 does not includes sexual relations between Husband and Wife.
It is held that the conjugal relationship between husband wife includes love that has intimacy, compassion and sacrifice, although it is difficult to understand the emotions of husband and wife who share intimate bond, but sexual pleasure is integral part of their relentless bonding with each other.
17. Indeed, the primary argument of the learned counsel for the petitioner was that when Section 375 IPC defines ‘rape’ and also by way of amendment in 2013, Exception-2 has been provided which bespeaks that sexual intercourse or sexual acts by a man with his own wife is not a rape and therefore if any unnatural sex as defined under section 377 is committed by the husband with his wife, then it can also not be treated to be an offence.
Secondarily, as per the learned counsel for the petitioner, the impugned FIR is nothing but a malicious prosecution inasmuch as it has been lodged with intent to get ill-gotten gains by extorting money/property due to matrimonial discord between husband and wife; without disclosing any date, time and place of committing offence and also runs short of any explanation about the tardy complaint. Neither the allegations made against the petitioner are specific but are general and omnibus in nature, nor has it been succoured by any encouraging evidence.
Thus, the petitioner’s prosecution is apparently an abuse of process of law, which to secure the ends of justice, is liable to be annulled at the threshold. Tertiary, Shri Khandelwal argued that in the facts and circumstances of the case, vis-a-vis the existing legal position when Section 375 defines ‘rape’ specifying the offender and victim, and also the body parts which can be used for committing an offence, but repealing the said provision with regard to relation of husband and wife then doctrine of ‘implied repeal’ would also be applicable considering the unnatural offence.
Drafted By Abhijit Mishra