Madhya Pradesh High Court
Mr. Shashank Harsh vs The State Of Madhya Pradesh on 28 May, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
MISC. CRIMINAL CASE No. 40044 of 2023
BETWEEN:-
1. MR. SHASHANK HARSH S/O VINAY KUMAR
HARSH, AGED ABOUT 40 YEARS, OCCUPATION:
ENGINEER NAINITAL (UTTARAKHAND)
2. SMT. SAROJ HARSH W/O LATE VINAY KUMAR
HARSH, AGED ABOUT 67 YEARS, OCCUPATION:
HOME MAKER NAINITAL, UTTARAKHAND
(UTTARAKHAND)
3. SHWETA SHALIN WHEELER W/O MR. MR. LESLIE
ASHISH WHEELER, AGED ABOUT 43 YEARS,
OCCUPATION: BUSINESS GHAZIABAD (UTTAR
PRADESH)
4. MR. LESLIE ASHISH WHEELER S/O SHRI JOY
WHEELER, AGED ABOUT 43 YEARS, OCCUPATION:
BUSNESS GHAZIABAD (UTTAR PRADESH)
.....APPLICANT
(MS. SITWAT NABI, LEARNED COUNSEL WITH SHRI YASH VYAS,
LEARNED COUNSEL FOR THE PETITIONER .)
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
SHAMGARH THANA DISTRICT MANDSAUR
(MADHYA PRADESH)
2. ALICE W/O SHASHANK HARSH, AGED ABOUT 31
YE A R S , R/O GURJAR COLONY, SHAMGARH
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI H.S.RATHORE - GOVT. ADVOCATE FOR RES./STATE
(SHRI SUBODH CHOUDHARY, ADVOCATE FOR RES.[COMP].)
Reserved on:16.05.2024
Signature Not Verified
Signed by: SUMATHI
Signing time: 28-05-
2024 17:59:12
2
Delivered on:28.05.2024
This M.Cr.C. having been heard and reserved for orders, coming on
for pronouncement this day, the court passed the following:
ORDER
Heard finally, with the consent of the parties.
2 . This petition under Section 482 of Cr.P.C. is preferred by the
petitioners for quashment of the FIR bearing Crime No.407/2023, dated
24.08.2023, registered at Police Station-Shyamgarh, District - Mandsaur, under
Sections 377, 498-A, 294, 506 of IPC, 1860 and the consequential proceedings.
3 . As per the prosecution story, on 23.08.2023, complainant gave a
written complaint stating that the marriage of the petitioner no.1. was solemnized
with her on 09.12.2021 in the Court at Nainital. After marriage she started
residing at her matrimonial house and discharging her duties as a daughter-in-
law. Further allegation is that petitioner no.1 has committed unnatural sex with
the complainant on 09.01.2022 due to which she got mouth infection and was
under treatment. The complainant was compelled to abort her pregnancy by the
petitioners. It was alleged that the petitioners demanded Rs.20.00 lakhs as
dowry and also used to torture her verbally and physically for not fulfilling their
demands. Therefore being aggrieved the complainant has filed a complaint.
4. Learned counsel for the petitioners submitted that the allegations are
prima facie false, and have been levelled against the petitioners only to give
criminal angle to the matrimonial dispute. Allegation of unnatural sex by
petitioner no. 1 is unequivocally false and the petitioner no.1 and complainant
were in happy marriage. There is no material on record put by the complainant
to substantiate her baseless and frivolous allegations and the provisions of
Section 377 has been inserted in the said FIR with mala fide intention to harass
the petitioner, in order to secure vengeance against the petitioner no.1 and his
family members which solely arises out of matrimonial dispute. The act of
unnatural sex by a husband with his legally wedded wife residing with him is not
an offence under Section 377 of IPC, as held by Hon'ble High Court of M.P. in
the case of Umang Singhar vs. State of Madhya Pradesh (2023 SCC Onlie
MP 3221) and Manish Sahu vs. State of M.P. & Anr. (M.Cr.C.
No.8388/2023). There is a significant delay of 1 year and 9 months in lodging
the FIR without any proper explanation for the inordinate delay. No medical
report was furnished to substantiate the claim that complainant got mouth
infection and was under treatment. Counsel further relied upon the case of
Kailash Sonkar & Ors. vs. State of Chhattisgarh & Ors. (W.P. (Crl.)508 of
2021) in support of her contentions. The petitioners never made any
unreasonable demands and they had a very cordial relationship with the
complainant. The petitioners were very supportive and caring towards
complainant. At the time of death of complainant's father, petitioner no.1
booked expensive flight tickets for complainant and took over the burden of
tickets cost upon him.
5. Counsel further contended that the complainant was an abusive wife
who harassed petitioner no.1 husband and alienated him from his family. The
decision to return to India was made by the complainant with the intention of
lodging false cases against the petitioners. With regard to harassment met by
the complainant, it is submitted that even after marriage the complainant did not
live with her in-laws at her marital home. The petitioners had a very cordial
relationship with the complainant they gifted generously with complainant.
Complainant in course of torturing, threaten and harassed petitioner no.1,
deliberately made him refrained from talking to his mother, bother, sister and
other family members, thereby completely alienated and isolated him from his
family members. In relation to abortion claim, the consent letter, undertaking
signed by the complainant herself along with whatsapp chats clearly depicts that
the abortion was a mutual decision and not coerced by the petitioner no.1 or his
family members.
6. Counsel also relied upon the judgment of Hon'ble Apex Court in the
case of Abhishek vs. State of Madhya Pradesh (Cr.A. No.1457/2015)
decided on 01.09.2023 wherein the co-ordinate Bench of this Court quashed
the FIR against the in-laws citing farfetched and vague allegations and quashed
the criminal proceedings initiated at the instance of a wife against her in-laws for
the offence under Section 498-A of Cr.P.C. To strengthen her contentions
counsel placed reliance upon the decisions in Kailash Sonkar & Ors. vs. State
of Chhattisgarh [2021 SCC Online Chh 3258], Preeti Gupta vs. State of
Jharkhand [(2010) 7 SCC 667], Rajan & Anr vs. State o MP. [2023 SCC
Online MP 239], Arnesh Kumar vs. State of Bihar [(2014) 8 SCC 469],
Nimmgadda Vijay Lakshmi & Ors. vs. State of A.P. [2023 SCC Online
AP 1814], Manu Nishchal & Ors. vs. State of NCT & Anr. [2009SCC
Online Del 321], Manish Sahu vs. State of M.P. & Anr. [M.Cr.C.
No.8388/2023 order dated 01.05.2024]. C o uns el submitted that the
respondent no.2 just to take vengeance from the petitioners filed the fictitious
complaint. Under these facts and circumstances counsel prayed that the FIR
bearing Crime No.407/2023 dated 24.08.2023 registered against the petitioners
under Section 498-A, 37 294, 506 of IPC and the consequential proceedings be
quashed.
7. Per Contra, learned counsel for the respondent as well as counsel for
the respondent/State have vehemently opposed the application by submitting
that unnatural sex with his own wife is an offence punishable under Section 377
of IPC and there are specific allegations of harassment and torture so also the
petitioners have forced the respondent no.2 to abort her child hence no case is
made out for quashment of FIR and the further proceedings, therefore counsel
prayed for dismissal of this petition.
8. I have heard the counsel for the parties and perused the record.
9 . In view of the aforesaid contentions and arguments advanced by
counsel for the parties, it is worth here to quote the definition of "rape" as
prescribed under Section 375 of IPC, which reads as under:
375. Rape.- A man is said to commit "rape" who, except in
the case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six
following descriptions:--
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained
by putting her or any person in whom she is interested, in fear of
death or of hurt.
Fourthly.- With her consent, when the man knows that he is not
her husband, and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly.- With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly.- With or without her consent, when she is under sixteen
years of age.
Explanation.-Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.-Sexual intercourse by a man with his own wife, the
wife not being under fifteen years of age, is not rape."
10. The definition of "rape" was amended by Act No.13 of 2013 and the
amended definition of "rape" as defined under Section 375 of IPC reads as
under:-
Rape.-- A man is said to commit "rape" if he--
(a) 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; or
(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a
woman or makes her to do so with him or any other person;
or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any part of
body of such woman or makes her to do so with him or any
other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman
or makes her to do so with him or any other person, under
the circumstances falling under any of the following seven
descriptions:
First.Against her will.
Secondly.Without her consent.
Thirdly.W it h her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is
not her husband and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of
any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly.With or without her consent, when she is under
eighteen years of age.
Seventhly.When she is unable to communicate consent.
Explanation 1.For the purposes of this section, "vagina" shall
also include labia majora.
Explanation 2.Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form
of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the
act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception 1.A medical procedure or intervention shall not
constitute rape.
Exception 2.Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is
not rape
11. From the aforesaid definition it is evident that word 'rape' under
Section 375(a) of IPC includes penetration of penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or makes her to do so with him or
with any other person. Thus, the act of unnatural sex has been made a part of
definition of "rape". ection 375(a), (b), (c) & (d) of IPC includes all sorts of
unnatural acts. Therefore, if a person penetrates his penis into the mouth,
urethra or anus of a woman, would be guilty of committing rape.
12. Now the point needs to be considered is as to whether the consent of
wife residing along with her husband during the subsistence of marriage can
claim that the sexual act was committed with her without her consent?
13. In the case of Manish Sahu Vs. State of M.P. (Supra) endorsing
the view of Hon'ble Apex Court in the case of Navtej Singh Johar and Others
vs. Union of India through Secretary, Ministry of Law and Justice reported
in (2018) 10 SCC has opined 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.
1 8 . Under these circumstances, this Court is of considered
opinion That the allegations made in the FIR would not make
out an offence under Section 377 of IPC. My view is fortified
by a judgment passed by Co-ordinate Bench of this Court in the
case of Umang Singhar Vs State of Madhya Pradesh, Through
Station House Officer and Another reported in 2023 SCC
OnLine MP 3221."
14. In the case of Umang Singhar vs. State of M.P. & Anr (order
dated 21.09.2023 passed in M.Cr.C. No.59600/2022) co-ordinate Bench of this
Court while dealing with question whether the offence under Section 377 of
IPC between husband and wife can be weighed parallel to the offence of rape
as defined under section 375 IPC has held as under:
"12. 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.
13. To fathom the depth of submissions made by the learned
counsel for the petitioner, it is imperative to go-through the
definition of 'rape', in that, for committing rape, as per Section
375(a), an offender is a 'man' who uses the part of the body - (a)
Penis, as per Section 375(b) body-parts other than penis and
375(c) any other object. Simultaneously, the said definition
describes - at the receiving end the body parts are (a) Vagina, (b)
Urethra, (c) Anus, (d) Mouth and (e) other body parts.
Considering the offence of Section 377 i.e. unnatural, although it is
not well-equipped and offender is not defined therein but body
parts are well defined, which are also included in Section 375 i.e.
carnal intercourse against the order of nature. At this juncture, it is
indispensable to see what is unnatural. The Supreme Court in a
petition challenging the constitutionality of Section 377 IPC
criminalizes 'carnal intercourse against the order of nature' which
among other things has been interpreted to include oral and anal
sex. Obviously, I find that Section 377 of IPC is not well-
equipped. Unnatural offence has also not been defined anywhere.
The five-judge bench of the Supreme Court in re Navtej Singh
Johar (supra) testing the constitutionality of said provision although
held that some parts of Section 377 are unconstitutional and finally
held if unnatural offence is done with consent then offence of
Section 377 IPC is not made out. The view of the Supreme Court
if considered in the light of amended definition of Section 375 and
the relationship for which exception provided for not taking
consent i.e. between husband & wife and not making offence of
Section 376, the definition of rape as provided under Section 375
includes penetration of penis in the parts of the body i.e. vagina,
urethra or anus of a woman, even though, the consent is not
required then as to how between husband and wife any unnatural
offence is made out. Apparently, there is repugnancy in these two
situations in the light of definition of Section 375 and unnatural
offence of Section 377. It is a settled principle of law that if the
provisions of latter enactment are so inconsistent or repugnant to
the provisions of an earlier one that the two cannot stand together
the earlier is abrogated by the latter. The Supreme Court in re
Dharangadhra Chemical Works (supra) has observed as under:-
"10. It is true that repeal by implication is not ordinarily
favoured by the courts but the principle on which the rule
of implied repeal rests has been stated in Maxewell on
Interpretation of Statutes (Twelfth Edition) at p.193 thus:
"If, however, the provisions of a later enactment are so
inconsistent with or repugnant to the provisions of an
earlier one that the two cannot stand together the earlier is
abrogated by the later (vide Kutner v. Phillips)."
In Zaverbhai Amaldas v. State of Bombay [AIR 1954 SC
752] this Cout has approved the above principle in the
context of two pieces of legislation, namely, The Essential
Supplies (Temporary Powers) Act, 1946 as attended by
Act LTI of 1950 (a Central Act) and Bombay Act XXXVI
of 1947 the provisions whereof in the context of enhanced
punishment were repugnant to each other. The Court held
that the question of punishment for contravention of orders
under the Essential Supplies (Temporary Powers) Act both
under the Bombay Act and the Central Act constituted a
single subject matter and in view of Article 254(1) of the
Constitution Act LTI of 1950 (Central enactment) must
prevail.,,,,"
16. At this point, if the amended definition of Section 375 seen, it
is clear that two things are common in the offence of Section 375
and Section 377 firstly the relationship between whom offence is
committed i.e. husband and wife and secondly consent between
the offender and victim. As per the amended definition, if offender
and victim are husband and wife then consent is immaterial and no
offence under Section 375 is made out and as such there is no
punishment under Section 376 of IPC. For offence of 377, as has
been laid down by the Supreme Court in re Navtej Singh Johar
(supra), if consent is there offence of Section 377 is not made out.
At the same time, as per the definition of Section 375, the offender
is classified as a 'man'. here in the present case is a 'husband' and
victim is a 'woman' and here she is a 'wife' and parts of the body
which are used for carnal intercourse are also common. The
offence between husband and wife is not made out under Section
375 as per the repeal made by way of amendment and there is
repugnancy in the situation when everything is repealed under
Section 375 then how offence under Section 377 would be
attracted if it is committed between husband and wife.
1 7 . In other way, the unnatural offence has not been defined
anywhere, but as has been considered by the Supreme Court in the
case of Navtej Singh Johar (supra) that any intercourse, not for
the purpose of procreation, is unnatural. But respectfully I find that
when same act as per the definition of Section 375 is not an
offence, then how it can be treated to be an offence under Section
377 IPC. In my opinion, the relationship between the husband and
wife cannot be confined to their sexual relationship only for the
purpose of procreation, but if anything is done between them apart
from the deemed natural sexual intercourse should not be defined
as 'unnatural'. Normally, sexual relationship between the husband
and wife is the key to a happy connubial life and that cannot be
restricted to the extent of sheer procreation. If anything raises their
longing towards each other giving them pleasure and ascends their
pleasure then it is nothing uncustomary and it can also not be
considered to be unnatural that too when Section 375 IPC includes
all possible parts of penetration of penis by a husband to his wife.
18. Exempli gratia - if sexual intercourse for procreation via penile-
vaginal penetrative intercourse is considered to be natural sex and
sexual relations of husband and wife is confined to that extent then
in case if any husband or wife is not capable of procreation, then
seemingly their relationship would become useless, but it does not
happen. The conjugal relationship between husband wife includes
lo ve 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. Ergo, in my opinion, no barrier
can be put in alpha and omega of sexual relationship between the
husband and his wife. Thus, I find feasible that in view of amended
definition of Section 375, offence of 377 between husband and
wife has no place and as such it is not made out."
15. In view of the aforesaid discussions, this Court is of the considered
opinion that in the case at hand since the respondent no.2/wife was residing with
her husband during the subsistence of their marriage and as per amended
definition of "rape" under Section 375 of IPC by which insertion of penis in the
mouth of a woman has also been included in the definition of "rape" and any
sexual intercourse or act, by the husband with his wife not below the age of
fifteen years is not a rape, therefore, consent is immaterial. In these
circumstances the allegations made in the FIR does not constitute offence under
Section 377 of IPC against the petitioner no.1. Accordingly, the petitioner no.1
is discharged from offence under Section 377 of IPC.
16. Now with regard to offence under Section 294 of IPC prima facie,
there is no evidence available on record by which it can be ascertained that the
accused persons have committed any obscene act in any public place. The
said incidents have been occurred in the premises of the house which is
surrounded by walls, hence offence under Section 294 of IPC is not made out
against the petitioners.
17. Likewise, offence under Section 506 of IPC has also not supported
prima facie by the evidence placed before the trial Court, there is an omnibus
statement regarding threatening to kill, which is not sufficient to establish the
charge of offence under Section 506 of IPC because the said threaten must
consist the ingredients of fear and frightening. Be that as it may, the allegations
are omnibus in nature and not containing any date, time and place. The
respondent no.2 had never stated that she was frightened by said threatening,
hence offence under Section 506 of IPC is also not made out against the
petitioners.
18. Petitioners have been implicated for offence under Section 498A IPC
as well. To make out an offence under Section 498A IPC complainant has not
only to allege demand for dowry but also that she was subjected to cruelty by
her husband or relatives of the husband for non-fulfillment of their unlawful
demand. Cruelty as defined in Section 498A IPC means any willful conduct
which is of such a nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health whether mentally or
physically to the woman or harassment of the woman where such harassment is
with a view to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of failure by her
or any person related to her to meet such demand. I n the case at hand
allegations of demand of dowry of Rs.20.00 lakhs are made against the
petitioners. The petitioner no.1 forced the respondent no.2 to have intercourse
with his friend and on refusal the she has been harassed, assaulted by the
petitioner no.1. Further more allegation are also against the petitioners no. 2 to
4 regarding dowry demand and that of taunting her over phone for not fulfilling
their demand of dowry. These allegations are made in the FIR as well as in the
statement of respondent no.2 recorded under Section 164 of Cr.P.C so also the
statement of witnesses recorded under Section 161 of Cr.P.C which is
supported by other documentary evidence.
19. Looking to the aforesaid allegations, this Court is of the view that
prima facie offence under Section 498-A of IPC is made out against the
petitioners. Accordingly, the petition regarding quashment of FIR with regard
to Section 498-A of IPC is liable to the dismissed.
20. In conspectus of the aforesaid discussions in entirety the petition
under Section 482 of Cr.P.C is partly allowed to the extent that the offence
under Sections 377, 294, 506 of IPC against the petitioners are hereby quashed,
however, offence under Section 498-A of IPC in the FIR is not quashed and to
that extent the present petition is dismissed.
21. Before parting, this Court clarifies that any view or observation made
herein would not be binding in any manner on the merits of the case for the
concerned trial Court while adjudicating the matter in accordance with law.
22. Resultantly, M.Cr.C. No.40044/2023 stands partly allowed.
Certified copy, as per Rules.
(PREM NARAYAN SINGH)
JUDGE
sumathi
