DILIP PANDEY Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This criminal revision has been preferred by the applicants against the order dated 22-1-2021 passed in S.T. 5/2021 by the Addl. Sessions Judge, Bemetara, Distt. Bemetara by which charges under Sections 498-A, 34, 376 and 377 of the Indian Penal Code (in short 'the I.P.C.') have been framed against the applicant No.1 and charge under Section 498-A of the IPC has been framed against applicants No. 2 and 3.

(2.) Brief facts of the case are that marriage of complainant was solemnized with the non-applicant No. 1 on 8-6-2017. Thereafter, they resided together. After few days of marriage, the applicants started harassing complainant on demand of dowry i.e. money and other articles. The applicants also used to abuse her and commit marpeet with her. The applicant No. 1/husband many times had made unnatural physical relation with her. He also inserted his fingers and radish in her vagina, despite her protest. Efforts were made to settle their dispute but it went in vein. Therefore, complainant filed written complaint against the applicants at PS Bemetara. After investigation, charge sheet under Section 498-A, 377, 376, 34 of the I.P.C. was filed against the applicants. After affording opportunity of hearing to the counsel for both the parties, learned trial Court framed charges against the applicants as mentioned above. Hence, this revision.

(3.) Learned counsel for the applicants submits that the complainant and the applicant No. 1 are legally wedded wife and husband, therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the I.P.C. are spelt out against applicant No. 1, because, in India, marital rape is not recognized and the same is not an offence in view of Exception II of Section 375 of the I.P.C. He further submits that carnal intercourse against the order of nature with any man, woman or animal voluntarily is necessary ingredient of Section 377 of the I.P.C. which is not present in this case. Therefore, the order of framing of charges against the applicant No. 1/ husband under Sections 376 and 377 of the I.P.C. is illegal and erroneous. He further submits that framing of charge of Section 498-A of the I.P.C. against the applicants is also not sustainable. Therefore, he prays that the impugned order be set aside and the applicants be discharged from aforesaid charges. To buttress his argument, he places reliance in the order of High Court of Gujrat at Ahmedabad in Nimeshbhai Bharatbhai Desai -v- State of Gujrat (2018 SCC Online Guj 732).