Madhya Pradesh High Court
Banti Jatav vs The State Of Madhya Pradesh on 9 May, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 M.Cr.C. No. 32576 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 9th OF MAY, 2025
MISC. CRIMINAL CASE No. 32576 of 2024
BANTI JATAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Dr. Jitendra Singh Kushwah, Advocate for applicant.
Shri Mohit Shivhare, Public Prosecutor for respondent No.1/State.
Shri Vinod Kumar Dhakad, Advocate for respondent No.2.
ORDER
This application, under Section 482 of CrPC, has been filed for
quashment of FIR in Crime No.11 of 2024 registered at Police Station Sirol,
District Gwalior for offence under Sections 377, 323 and 498A of IPC and
criminal proceedings in ST No. 227 of 2024.
2. It is submitted by counsel for applicant that although charge sheet has
been filed, but charges have not been framed. Therefore, this application is
being decided under the impression that charges have not been framed.
3. Shri Vinod Kumar Dhakad has appeared for complainant/respondent No.
2 and written objection was also filed by respondent No. 2 in which she has
repeatedly stated that in spite of undertaking given by applicant, the offence
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was repeated by him.
4. According to prosecution case, respondent No. 2 lodged an FIR alleging
that she got married to applicant on 2.5.2023 in accordance with Hindu rites
and rituals. An amount of Rs. 5 lakhs, household articles and one Bullet
motorcycle were given by her parents in the marriage. Right from the date of
marriage, applicant is committing unnatural sex with her after consuming
liquor and whenever she refused to indulge in such activity, then she is being
assaulted and treated with cruelty. When she narrated this incident to her
parents, then they also tried to persuade her husband but he did not improve,
and he always does wrong act (xyr gjdr) with her, as well as, treat her with
cruelty by assaulting her. She had complained to Mahila Paramarsh Kendra on
number of occasions. Her husband was also summoned by the police but he did
not agree, and he has not stopped committing the bad activity (xyr gjdr) and
also did not stop treating her with cruelty, and accordingly, the FIR was lodged.
5. Challenging the FIR, it is submitted by counsel for applicant that
undisputedly respondent No. 2 is legally wedded wife of applicant. In the light
of judgment passed by this Court in the case of Manish Sahu vs. State of
Madhya Pradesh and another decided on 1.5.2024 in MCRC No. 8388 of
2023 (Principal Seat), it is clear that unnatural sex with wife is not a rape as per
amended definition of rape under Section 375 of IPC, and thus it is submitted
that when the basic allegation of committing unnatural sex is not an offence,
then no offence under Section 498A of IPC is made out.
6. Heard learned counsel for the applicant.
7. This Court in the case of Manish Sahu (Supra) has held as under:
10. Now the only question for consideration is as to whether a
husband during the subsistence of marriage while residing together
can be said to be guilty of marital rape or in other words, whether
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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.
11. Section 375 Exception 2 of IPC provides that sexual
intercourse or sexual acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape. The only exception to
this provision is Section 376-B of IPC where the sexual act with his
own wife during the separate living on account of judicial separation
or otherwise would be a rape.
12. Thus, when rape includes insertion of penis in the mouth,
urethra or anus of a woman and if that act is committed with his
wife, not below the age of fifteen years then consent of the wife
becomes immaterial.
13. The Supreme Court in the case of Navtej Singh Johar and
Others Vs. Union of India, Ministry of Law and Justice reported
in (2018) 1 SCC 791 had referred the following question to the
Larger Bench for adjudication:-
"8. It is necessary to note, in the course of hearing on
a query being made and Mr Datar very fairly stated
that he does not intend to challenge that part of
Section 377 which relates to carnal intercourse with
animals and that apart, he confines to consenting acts
between two adults. As far as the first aspect is
concerned, that is absolutely beyond debate. As far as
the second aspect is concerned, that needs to be
debated. The consent between two adults has to be the
primary precondition. Otherwise the children would
become prey, and protection of the children in all
spheres has to be guarded and protected. Taking all
the aspects in a cumulative manner, we are of the
view, the decision in Suresh Kumar Koushal
case [Suresh Kumar Koushal v. Naz Foundation,
(2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] requires
reconsideration. As the question relates to
constitutional issues, we think it appropriate to refer
the matter to a larger Bench."
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14. Thus the question is as to whether a consensual unnatural act
between two adults may be of same gender or of different gender
would be an offence under Section 377 of IPC or not?
15. The Supreme 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 1 has held as under:-
"609. This case has required a decision on whether
Section 377 of the Penal Code fulfils constitutional
standards in penalising consensual sexual conduct
between adults of the same sex. We hold and declare
that in penalising such sexual conduct, the statutory
provision violates the constitutional guarantees of
liberty and equality. It denudes members of the
LGBTcommunities of their constitutional right to lead
fulfilling lives. In its application to adults of the same
sex engaged in consensual sexual behaviour, it
violates the constitutional guarantee of the right to life
and to the equal protection of law.
610. Sexual orientation is integral to the identity of
the members of the LGBT communities. It is intrinsic
to their dignity, inseparable from their autonomy and
at the heart of their privacy. Section 377 is founded
on moral notions which are an anathema to a
constitutional order in which liberty must trump over
stereotypes and prevail over the mainstreaming of
culture. Our Constitution, above all, is an essay in the
acceptance of diversity. It is founded on a vision of an
inclusive society which accommodates plural ways of
life.
611. The impact of Section 377 has travelled far
beyond criminalising certain acts. The presence of the
provision on the statute book has reinforced
stereotypes about sexual orientation. It has lent the
authority of the State to the suppression of identities.
The fear of persecution has led to the closeting of
same sex relationships. A penal provision has
reinforced societal disdain.
612. Sexual and gender-based minorities cannot live
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in fear, if the Constitution has to have meaning for
them on even terms. In its quest for equality and the
equal protection of the law, the Constitution
guarantees to them an equal citizenship. In
decriminalising such conduct, the values of the
Constitution assure to the LGBT community the
ability to lead a life of freedom from fear and to find
fulfilment in intimate choices.
613. The choice of a partner, the desire for personal
intimacy and the yearning to find love and fulfilment
in human relationships have a universal appeal,
straddling age and time. In protecting consensual
intimacies, the Constitution adopts a simple
principle : the State has no business to intrude into
these personal matters. Nor can societal notions of
heteronormativity regulate constitutional liberties
based on sexual orientation.
614. This reference to the Constitution Bench is about
the validity of Section 377 in its application to
consensual sexual conduct between adults of the same
sex. The constitutional principles which we have
invoked to determine the outcome address the origins
of the rights claimed and the source of their
protection. In their range and content, those principles
address issues broader than the acts which the statute
penalises. Resilient and universal as they are, these
constitutional values must enure with a mark of
permanence.
615. Above all, this case has had great deal to say on
the dialogue about the transformative power of the
Constitution. In addressing LGBT rights, the
Constitution speaks--as well--to the rest of society.
In recognising the rights of the LGBT community, the
Constitution asserts itself as a text for governance
which promotes true equality. It does so by
questioning prevailing notions about the dominance
of sexes and genders. In its transformational role, the
Constitution directs our attention to resolving the
polarities of sex and binarities of gender. In dealing
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with these issues we confront much that polarises our
society. Our ability to survive as a free society will
depend upon whether constitutional values can
prevail over the impulses of the time.
616. A hundred and fifty-eight years is too long a
period for the LGBT community to suffer the
indignities of denial. That it has taken sixty-eight
years even after the advent of the Constitution is a
sobering reminder of the unfinished task which lies
ahead. It is also a time to invoke the transformative
power of the Constitution.
617. The ability of a society to acknowledge the
injustices which it has perpetuated is a mark of its
evolution. In the process of remedying wrongs under
a regime of constitutional remedies, recrimination
gives way to restitution, diatribes pave the way for
dialogue and healing replaces the hate of a
community. For those who have been oppressed,
justice under a regime committed to human freedom,
has the power to transform lives. In addressing the
causes of oppression and injustice, society transforms
itself. The Constitution has within it the ability to
produce a social catharsis. The importance of this
case lies in telling us that reverberations of how we
address social conflict in our times will travel far
beyond the narrow alleys in which they are explored.
618. We hold and declare that:
618.1. Section 377 of the Penal Code, insofar as it
criminalises consensual sexual conduct between
adults of the same sex, is unconstitutional;
618.2. Members of the LGBT community are entitled,
as all other citizens, to the full range of constitutional
rights including the liberties protected by the
Constitution;
618.3. The choice of whom to partner, the ability to
find fulfilment in sexual intimacies and the right not
to be subjected to discriminatory behaviour are
intrinsic to the constitutional protection of sexual
orientation;
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618.4. Members of the LGBT community are entitled
to the benefit of an equal citizenship, without
discrimination, and to the equal protection of law; and
618.5. The decision in Koushal [Suresh Kumar
Koushal v. Naz Foundation, (2014) 1 SCC1 : (2013)
4 SCC (Cri) 1] stands overruled."
16. Thus, it is clear that a consensual sexual conduct between
adults of the same sex cannot be termed as an offence under Section
377 of IPC. Thus in nutshell, it can be said that if an unnatural sex
takes place between two persons of either same gender or different
gender with the consent of both the parties, then it would not be an
offence under Section 377 of IPC.
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.
18. 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
UmangSinghar Vs. State of Madhya Pradesh, Through Station
House Officer and Another reported in 2023 SCCOnLine MP
3221.
8. In the case of Independent Thought v. Union of India reported in
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(2017) 10 SCC 800 , the Supreme Court has held as under:
"197. In view of the above discussion, I am clearly of the
opinion that Exception 2 to Section 375 IPC insofar as it relates
to a girl child below 18 years is liable to be struck down on the
following grounds:
(i) it is arbitrary, capricious, whimsical and violative of the
rights of the girl child and not fair, just and reasonable
and, therefore, violative of Articles 14, 15 and 21 of the
Constitution of India;
(ii) it is discriminatory and violative of Article 14 of the
Constitution of India; and
(iii) it is inconsistent with the provisions of the Pocso Act,
which must prevail.
Therefore, Exception 2 to Section 375 IPC is read down as
follows:
"Exception 2.--Sexual intercourse or sexual acts by a
man with his own wife, the wife not being 18 years, is not
rape."
It is, however, made clear that this judgment will have
prospective effect.
198. It is also clarified that Section 198(6) of the Code will
apply to cases of rape of "wives" below 18 years, and
cognizance can be taken only in accordance with the provisions
of Section 198(6) of the Code."
9. Therefore, it is clear that unnatural sex with wife would not be an
offence under Section 376 or 377 of IPC. Therefore, the FIR, so far as it relates
to commission of unnatural sex under Section 377 of IPC, is hereby quashed.
10. Now, the only question for consideration is as to whether offence under
Section 498A of IPC would be made out or not ?
11. It is submitted by counsel for applicant that since respondent No. 2 has
not alleged that any demand of dowry was ever made, therefore no offence
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would be made out.
12. Considered the submission made by counsel for applicant.
13. Section 498A of IPC reads as under:
498A. Husband or relative of husband of a woman subjecting her
to cruelty.--
Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and
shall also be liable to fine.
Explanation.-- For the purpose of this section, "cruelty" means--
(a) any wilful 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 mental or physical) of the
woman; or
(b) 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.
14. From a plain reading of Section 498A of IPC, it is clear that any willful
conduct which is of such nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb, or health, whether
mental or physical, to the woman, would amount to cruelty under Section 498A
of IPC.
15. Committing unnatural sex with wife against her wishes and on her
resistance, assaulting and treating her with physical cruelty will certainly fall
within the definition of cruelty. It is not out of place to mention here that
demand of dowry is not sine qua non for cruelty.
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16. Under these circumstances, this Court is of considered opinion that since
there are specific allegations that whenever respondent No. 2 resisted to the
unnatural conduct of applicant, then she was assaulted and was treated with
physical cruelty, this Court is of considered opinion that offence under Section
498A of IPC is made out.
17. Accordingly, this application is partially allowed. Offence under Section
377 is hereby quashed. However, FIR in relation to offence under Section 498A
and 323 of IPC is upheld.
(G.S. Ahluwalia)
Judge
(and)
