The Allahabad High Court while allowing the petition observed that protection of a person from marital rape continues in cases where his wife is of 18 years of age or more than that.
A Single Bench of Justice Ram Manohar Narayan Mishra passed this order while hearing a Criminal Revision filed by Sanjeev Gupta.
By means of the criminal revision, the revisionist/ accused has assailed the judgement of the A.C.J.M, Ghaziabad in Criminal Case under Sections 498-A, 323, 377 IPC and Section 4 of D.P Act, P.S Link Road, District Ghaziabad, the revisionist has been convicted of charge under section 498-A, 323, 377 IPC and Section 4 of D.P Act and sentenced him to two years rigorous imprisonment and Rs 30,000/- fine for charge under Section 498-A IPC and five years rigorous imprisonment and Rs 20,000/- fine for charge under Section 377 IPC, six months simple imprisonment and Rs 500/- for charge under Section 323 IPC and one year simple imprisonment and Rs 1,500/- fine for charge under section 4 D.P Act and sentence and fine are coupled with default stipulation; all the sentences were directed to run concurrently. 50% fine is directed to be paid as compensation to the victim/ informant.
The revisionist has assailed judgement of trial court in criminal appeal (Sanjeev Gupta vs State of UP) whereby criminal appeal is partly allowed to the extent that conviction for charge under section 498-A, 323, 377 IPC has been affirmed but his conviction and sentence for charge under section 4 of D.P Act has been set aside.
The sentence awarded by the trial court for charge under section 377 IPC has been modified to the extent that five years rigorous imprisonment for charge under section 377 IPC is reduced to four years keeping in view quantum of fine intact.
The revisionist has impugned both the orders passed by the courts below in present revision which has been preferred under section 397/401 Cr.P.C.
The facts of the case are that prosecutrix/ informant, who is respondent no 2 in present revision lodged an F.I.R on 9.8.2013 at 9:05 hours on the basis of written report vide Crime at PS Link Road, Ghaziabad under section 498-A, 323, 504, 377 IPC and section ¾ D.P Act against the revisionist/ accused with averment that her marriage with accused Sanjeev Gupta was solemnized on 1.7.2012 according to Hindu rites and rituals in which her father had spent around five and half lakhs. She stayed with her husband at the Country Inn Hotel for two days after the marriage. Her husband subjected her to cruelty just after the marriage in said hotel and demanded a Fortuner car and Rs. 40 lakhs cash and asked her to bring the dowry from her parents.
On 3.7.2012 her husband brought her to her parental place where she told her ordeal to her parents, brother and sister-in-law. Her family members tried to convince her that things will get right in future and also expressed their inability to fulfil the demand of dowry made by her husband. On 23.7.2012 her husband again visited her parental place and asked her to go with him but he made a demand of dowry to which her parents expressed their inability to fulfil. Her husband abused her and took her to his parental place at A-229, Suryanagar, Ghaziabad where he behaved with her in a cruel and inhuman manner. He would engage with her in marpeet and abuse. He subjected her to unnatural intercourse (sodomy) on many times due to which she suffered damages to her private parts. She suffered her ordeal keeping in view her future but behaviour of her husband did not change. On 14.8.2012 her parents brought her to her parental place where she told her plight to her maternal uncle Sunil Suri, Sanjay Suri and others, they also tried to make her husband understand but he did not pay any heed to their request and they came back being disappointed.
On 9.8.2013 at around 2:30 pm when she was in her parental place and her parents had gone to market, her husband rang the bell of the house and when she opened the door, he barged into the house, dragged her forcefully inside the room, abused her and forcefully established unnatural physical relation with her against her consent.
Her parents appeared at the place of the scene and the accused was caught with the help of a passer-by in the street and brought to the police station. Police investigated the case and submitted the charge-sheet against the accused for aforesaid offences.
The Court noted that,
The appellate court has also observed that after lapse of one year, the presence of any anal injury or absence of spermatozoa in vaginal smear of prosecutrix is a natural phenomena and on this reason, her testimony for charge under section 377 IPC cannot be disbelieved. Therefore, this fact is proved that the accused had committed unnatural offences such as sodomy and oral sex against the prosecutor without her consent and therefore, he is liable to be convicted and sentenced for that offence.
In the opinion of the trial court, fact is also proved by prosecution evidence that accused slapped the victim, his wife in the first night of marriage and caused simple injury to her, which is punishable under Section 323 IPC and accordingly sentenced him for that offence for six months simple imprisonment with fine of Rs 500/-.
The appellate court has also affirmed the conviction of revisionist for charge under section 498-A IPC with regard to causing matrimonial cruelty against the defacto complainant on the ground that he acted in cruel manner with his wife just after the marriage and committed unnatural sex like sodomy and oral sex (fellatio) with her without her consent and that amounts to marital wrong and matrimonial cruelty.
With observation and giving due consideration to the various judgement of the Supreme Court and recent judgement of High Court of Madhya Pradesh (supra) allowing the petition under section 482 Cr.P.C and quashing the F.I.R lodged against the petitioner for alleged offences including section 377 IPC which are relevant in the revision also, it can be observed that marital rape has not been criminalized in this country as yet.
In the matter, the case of commission of unnatural sex on the first night is not taken in the FIR and the same is taken afterwards in divorce petition and in proceedings under the Domestic Violence Act. Medical evidence is not supportive of allegations of commission of unnatural sex. No medical examination of the victim was carried out with regard to allegations of commission of unnatural sex prior to 9.8.2013 whereas she has stated in her evidence that she was subjected to sodomy and oral sex during period 23.7.2012 to 14.8.2012 by her husband, the Court further noted.
The Court observed that protection of a person from marital rape still continues in the case where wife is of 18 years of age or more than that. Ingredients of unnatural sex, composed under Section 377 IPC are included in Section 375 (a) IPC as observed by the High Court of Madhya Pradesh in the above case. In proposed Bhartiya Nyay Sanhita which is likely to replace I.P.C, no provision like Section 377 IPC is included therein. The charge of committing matrimonial cruelty against the revisionist is proved in this case and the same is corroborated by findings of family court while decreeing the divorce petition and this court in appeal while affirming decree of divorce against the revisionist.
“On the basis of foregoing discussion, totality of facts and circumstances of the case, evidence on record and judgement of Madhya Pradesh High Court, revisionist is liable to be acquitted of charge under section 377 IPC”, the Court also observed while allowing the petition.
“However, his conviction and sentence for charge under section 498-A, 323 IPC as recorded by the courts below is affirmed. Consequently, his conviction and sentence as recorded by the courts below for charge under section 377 IPC is set aside. He is acquitted of charge under section 377 IPC.
Keeping in view the totality of facts and circumstances of the case, situation of accused appellant, some allegations made by the complainant being not proved as stated in appellate judgement, sentence under sections 498-A, 323 IPC is reduced to period already undergone. Revisionist has already undergone sentence awarded for charge under section 323 IPC, therefore, he is liable to be released from jail after depositing an amount of fine for charge under sections 498-A, 323 IPC or suffering default sentence, as the case may be. In case of failure to deposit the amount he will serve default sentence for these offences in accordance with law”, the order reads.