Madhya Pradesh High Court
Mahendra Singh vs The State Of Madhya Pradesh on 10 May, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 10 th OF MAY, 2024
MISC. CRIMINAL CASE No. 18189 of 2024
BETWEEN:-
MAHENDRA SINGH S/O ISHWAR SINGH, AGED ABOUT
26 YEARS, OCCUPATION: STUDENT JAWAHAR MARG
GALI NO.02 SONKATCHH TEH- SONKATCHH DISTT
DEWAS (MADHYA PRADESH)
.....APPLICANT
(BY SHRI VIVEK SINGH AND SHRI JEEVAN SINGH GURJAR, LEARNED
COUNSEL)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION SONKACHHA,
DISTRICT DEWAS (MADHYA PRADESH)
.....RESPONDENT
(SHRI MUKESH SHARMA, LEARNED PUBLIC PROSECUTOR FOR THE
STATE AND SHRI AJAY RAJ GUPTA AND SHRI SHASHIKANT BHATI,
LEARNED COUNSEL FOR THE OBJECTOR)
This application coming on for admission this day, the court passed the
following:
ORDER
This is first bail application under Section 438 of Cr.P.C for grant of
anticipatory bail in connection with crime No.111/2024 dated : (not mentioned),
registered at P.S. - Sonkatch, District - Dewas for offences punishable under
Sections 377, 294, 323, 506, 354, 34 of IPC.
2. As per the prosecution case, a report has been lodged by the wife of
the applicant alleging that the applicant had come in the room in a drunken
condition and abused her and thereafter made unnatural intercourse from anus.
3. Counsel for the applicant submits that the complainant is a major
woman and as per the amended definition of Section 375 of IPC and exception
2 of the said section, alleged unnatural sexual intercourse with the major wife,
no offence under Section 377 of IPC shall be made out. In support of his
submissions, he has placed reliance on the judgment passed by Coordinate
Bench in the case of Umang Singhar vs. State of MP, 2023 SCC OnLine
MP 3221 and also the order passed by Coordinate Bench in the case of
Manish Sahu vs. State of MP in MCRC No.8388/2023 dated 01.05.2024.
A coordinate Bench in the case of Manish Sahu, considering the provisions of
Section 377 of IPC held that any unnatural intercourse even without consent of
the wife would not amount to unnatural offence under Section 377 of IPC.
Relevant para-17 of the said judgment is reproduced as under:-
17. Thus the consent of both the parties is necessary for
taking the act out of the purview of Section 377 of IPC.
However, this Court after considering the amended definition
of "rape" as defined under Section 375 of IPC has already
come to a conclusion that if a wife is residing with her
husband during the subsistence of a valid marriage, then any
sexual intercourse or sexual act by a man with his own wife
not below the age of fifteen years will not be rape. Therefore,
in view of the amended definition of "rape" under Section 375
of IPC by which the insertion of penis in the anus of a woman
has also been included in the definition of "rape" and any
sexual intercourse or sexual act by the husband with her wife
not below the age of fifteen years is not a rape, then under
these circumstances, absence of consent of wife for unnatural
act loses its importance. Marital rape has not been recognized
so far.
4. Counsel for the State and the Objector submits that the aforesaid
judgments are passed in a petition under Section 482 of Cr.P.C. seeking
quashment of the FIR.
5. After hearing learned counsel for the parties and considering the
amended provisions of Section 375 of IPC where it has been prescribed that a
man is said to commit rape if he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or makes her to do so with him or
any other person and also considering Exception 2 that sexual intercourse or
sexual acts by a man with his own wife, who is not below the age of 15 years is
not a rape. Considering the same, sexual unnatural intercourse with a major wife
do not constitute the definition of the rape and, therefore, the offence under
Section 377 of IPC would also not be made out. Following the law laid down in
the case of Umang Singhar (supra) and Manish Sahu (supra), this Court
finds that prima facie case is made out for grant of anticipatory bail.
6. It is directed that in the event of arrest, applicant - Mahendra Singh
shall be released on bail on furnishing a personal bond in a sum of Rs.50,000/-
(Rs. Fifty Thousand Only) with one surety in the like amount to the
satisfaction of arresting officer on following conditions:-
(a) The applicant shall not approach and influence the prosecutrix.
(b) The applicant shall cooperate with the investigation.
The applicant shall further abide by the other conditions enumerated in
sub-section (2) of Section 438 of Cr.P.C.
7. A typed copy of this order is being forwarded to the Office of the
Advocate General, on their email address, for intimation to the Police Station
concerned.
8. With the aforesaid, the application is allowed and disposed off.
Certified copy as per rules.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
