YASHASVI KANT KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Apprehending his arrest, the accused-petitioner has filed this application for grant of anticipatory bail under Section 438, Cr. P.C. in respect of FIR No. 115/2015 registered at Mahila Thana, Jaipur City (North), Jaipur for the offences under Sections 498-A, 376 and 377, IPC. The allegation against the petitioner is that he had sexual intercourse and unnatural intercourse with the complainant without her consent and against her will. It is to be noted that, although the complainant admits that marriage between her and the petitioner took place in accordance with the ceremony of Arya-Samaj on 9-1-2015, but at the same time it is her stand that legal marriage between them was to be performed in accordance with the social customs and usages, but the petitioner refused to do so. The application filed by the petitioner for grant of anticipatory bail has been dismissed by the Additional Sessions Judge (Women Atrocities Cases) No. 2, Jaipur Metropolitan, Jaipur vide order dated 14-9-2015.

(2.) It was submitted by the learned counsel for the petitioner that in view of the fact that the complainant is legally married wife of the petitioner of the age of more than 15 years, petitioner was entitled to have sexual intercourse as well as every type of physical relation with her and for the sake of arguments, if the allegations made against the petitioner are taken to be true and correct, even then no offence punishable under Section 376, IPC is made out against the petitioner as the case comes within the four-corners of Exception 2 to Section 375, IPC. It was further submitted that although after amendment in Section 375, IPC w.e.f. 3-2-2013, definition of "rape" has been elaborately widened and not only sexual intercourse by a man with a woman but several other kind of acts are also included within the definition of rape but as per Exception 2 to this provision, sexual intercourse or any other kind of sexual acts by husband with his own wife, if her age is not below 15 years, do not amount to rape. It was submitted that any sexual act even in unnatural manner by husband with his wife does not come within the purview of offence as provided under Section 377, IPC. According to learned counsel for the petitioner-husband is legally entitled to perform any type of sexual activity with his wife and such activity does not amount an offence within the provisions of IPC. It was also contended that no medical evidence could be collected during the course of investigation showing even prima facie that any unnatural physical act was performed with the complainant.

(3.) On the other hand, learned Public Prosecutor submitted that in view of the amended Section 375, IPC, the alleged unnatural physical act of the petitioner with the complainant comes within the purview of "rape" and is accordingly punishable under Section 376, IPC. It was further submitted that otherwise also the alleged act on the part of the petitioner is offence under Section 377, IPC and, therefore, looking to the gravity of the offence the petitioner is not entitled to get benefit of anticipatory bail. It was also submitted that a man can have sexual intercourse with his legally married wife, if her age is not below fifteen years but he is not entitled to have any kind of physical relation even with his wife, if such relation is against the order of nature.