The Hon’ble Bench comprising Hon’ble Justice N.K.Chandravanshi held that. “Exception II of Section 375 of the Indian penal Code (Hereinafter referred to as ‘I.P.C.’) makes it clear that sexual intercourse or sexual act by a man with his wife who is not under the Fifteen years of age, is not rape. Moreover, If the sexual act even if it is committed against the wish or by force is also not an offence under section 376 of IPC”
Further, it is observed that “where the dominant intention of the offender is to derive unnatural sexual satisfaction then If the offender with the intention to derive sexual satisfaction inserts any object in the sex organ of the victim and consequently derives sexual pleasure, such act of the offender would constitute as a carnal intercourse within the meaning of section 377 of the IPC .”
Moreover, the hon’ble bench noted the judgment of High Court of Gujarat at Ahmedabad in Nimeshbhai Bharatbhai Desai -v- State of Gujrat in which the said high court held that “a wife who is a victim of an unnatural sexual offence can initiate proceedings against her husband under Section 377 of the I.P.C.”
The case herein is a revision petition against the order of the Addl. Sessions Judge, Bemetara, Distt. Bemetara.
In the instant case, the complainant and applicant herein for the revision petition were legally wedded couple and few days after the marriage the complainant was subjected to harassment for dowry by the three applicants for the present revision petition. The applicant No. 1/husband many times had made unnatural physical relations with her. therefore for the reasons aforesaid the complainant filed a complaint with the Bemetara police station and subsequently charge sheet under Section 498-A, 377, 376, 34 of the I.P.C. was filed against the applicants, and charges were framed against the applicant as mentioned above in the charge sheet. hence a revision petition against such order of charges is filed in the high court of Chattisgarh.
Firstly, the hon’ble bench as regards charge under section 375 of IPC against the husband of complainant held that “as the complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish and hence the charge under section 376 of IPC by the trial court was held erroneous.”
Further, the charges under section 498A of IPC were upheld against the three applications.
Lastly, regarding the charge against the husband under section 377 of IPC it was held by the hon’ble bench by taking into note the judgment of Gauhati high court in Momina Begum -v- Union of India and ors, where it was held that “penetration of any object by the offender into the sex organ with an intention to derive sexual pleasure is sufficient to constitute the sexual connection against the order of nature necessary to constitute the offence under Section 377 of the I.P.C.” held that “there is no infirmity in framing charges against the husband under section 377 of IPC.”
