Husband Forcefully Committing Unnatural Sex With Wife & Assaulting Her For Resisting Can Be Prosecuted For Cruelty: MP High Court

Justice Gurpal Singh Ahluwalia in his order observed:

 “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.”

An application under Section 482 of CrPC was filed for quashment of FIR for offences under Sections 377, 323 and 498A of IPC.

As per the prosecution, respondent No. 2-wife lodged an FIR alleging that she got married to applicant on in accordance with Hindu rites and rituals. It was alleged that from the date of marriage, applicant was committing unnatural sex with her after consuming liquor and whenever she refused to indulge, she was assaulted and treated with cruelty. She had also complained to Mahila Paramarsh Kendra on number of occasions. Her husband was also summoned by the police but he did not agree and continued with his act of committing unnatural sex and treating the complainant with cruelty.

The counsel for wife submitted that in spite of undertaking given by applicant, the offence was repeated by him.

Challenging the FIR, the counsel for applicant submitted that complainant is applicant's legally wedded wife and in the light of judgment passed by Manish Sahu vs. State of Madhya Pradesh and another, it is clear that unnatural sex with wife is not rape as per amended definition of rape under Section 375 of IPC. Thus, it was submitted that when committing unnatural sex is not an offence, then no offence under Section 498A of IPC is made out.

Findings

Referring to Manish Sahu, the Court concluded that unnatural sex with wife would not be an offence under Section 376 or 377 of IPC. Thus, the Court quashed the FIR with respect to commission of unnatural sex under Section 377 of IPC.

Thereafter, the Court went on to consider whether offence under Section 498A of IPC would be made out or not.

Referring to the aforesaid provisions, the Court said that 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.

The Court concluded that unnatural sex with wife against her wishes and assaulting and treating her with physical cruelty if she resists, would fall within the definition of cruelty.

“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.”, the Court said.

The FIR in relation to offence under Section 498A and 323 of IPC was thus, upheld and the court partly allowed the plea. 

Case title: BJ Versus THE STATE OF MADHYA PRADESH AND OTHERS 

Click Here To Read/Download Order