Delhi District Court
Neelansh Gupta vs State on 11 July, 2024
IN THE COURT OF SARITA BIRBAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
Cr. Rev. No.44/2024
CNR No.DLNE01-000692-2024
In the matter of:
Neelansh Gupta
S/o Sh. Rajesh Gupta
R/o H. No. C-57/A, Chanakya Marg,
Chajjupura, East Babarpur,
Shahdara, Delhi-110032. .........Revisionist
Versus
The State,
Govt. of NCT of Delhi. .........Respondent
Date of registration of case: 11.03.2024
Date when the case was received by this Court: 12.03.2024
Date of conclusion of arguments: 09.07.2024
Date of pronouncement of judgment: 11.07.2024
JUDGMENT:
1. Present criminal revision petition under Sections 397/399 of Code of Criminal Procedure has been filed against the order dated 07.02.2024 passed by learned Metropolitan Magistrate (Mahila Court-01), North-East, Karkardooma Courts, Delhi (hereinafter referred to as 'learned Trial Court') in FIR No.270/2022 under Sections 498-A/406/34 IPC read with Sections 3/4 of the Dowry Prohibition Act, Police Station Bhajanpura.
Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 1 of 112. The subject matter FIR was got registered on a complaint of the wife (hereinafter referred to as 'the complainant') of the revisionist.
3. The complainant in her complaint has stated that she got married to revisionist Neelansh Gupta according to Hindu rites and ceremony on 28.02.2020. It is alleged that after her marriage, her husband, mother-in-law and father-in-law raised demands of Rs.5,00,000/- and one Honda City car and on her refusal, she was beaten by them. It is alleged that on 02.03.2020, husband of the complainant left her at her parental home with a direction to bring Rs.5,00,000/- and a Honda City car. It is alleged that the complainant informed this fact to her parents on which a meeting was held between her father, Tauji and father-in-law on 15.03.2020 and it was agreed that a sum of Rs.2,50,000/- shall be paid immediately and the balance amount of Rs.2,50,000/- shall be paid in the last week of June, 2020. It is alleged that a sum of Rs.2,50,000/- was accordingly paid by father of the complainant to her husband and on 18.03.2020, she was taken to her matrimonial home by her husband.
4. The complainant has further alleged that her husband is having affair with a girl namely Pallavi and he used to speak to her on phone in day and night time. She has alleged that once she asked him about the same on which her husband threatened to divorce her and stated that he has got married to her under pressure of his father for dowry and he does not like her. The complainant has alleged that her husband, father-in-law, mother- in-law and sisters-in-law always misbehaved and abused her in her matrimonial home.
Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 2 of 115. The complainant has alleged that her husband used to show blue films to her on his mobile phone and ask her to do the acts as was being done by girls in the blue films. She has alleged that her husband forcefully did unnatural sex with her due to which she suffered unbearable pain in her back portion and this was repeated several times and if she refused to permit him to do so, then her husband beat her. The complainant has alleged that when she told this fact to her mother-in-law, she stated that Neelansh is her husband and he can do anything with her.
6. The complainant has alleged that in the second week of May, 2020, her father-in-law made a telephone call to her father and asked him about the payment of the balance amount. She has alleged that on 17.05.2020, her husband again left her at her parental home and asked her to bring the balance amount of Rs.2,50,000/- from her parents. On 30.05.2020, her husband took her back to her matrimonial home. She has alleged that after reaching her matrimonial home, her father-in-law asked her about the balance amount. It is alleged that in the last week of June, 2020, her husband, father-in-law and mother-in-law visited her parental home and raised the demand of balance payment of Rs.2,50,000/- and a Honda City car. The complainant has alleged that in the first week of July, 2020, her father-in-law asked her husband to install a CCTV camera in her bedroom and to link the same with his office at home but when the complainant requested not to install the CCTV camera in her bedroom, her father-in-law stated that he desires to see her in the bedroom. She has alleged that her father-in-law used to call her in his office and sometimes in the bedroom, where he kept her standing in one corner and Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 3 of 11 watch her for half an hour. The complainant has alleged that when she informed this fact to her mother-in-law, she stated that her father-in-law is the head of the family and she cannot say anything to her father-in-law. The complainant has further alleged that in the night of 06.07.2020, when she was sleeping in her room, her father-in-law came in her room and laid down on bed with her and caught hold of her. When the complainant opened her eyes, she was shocked to see her father-in-law. Thereafter, when she tried to run away, her father-in-law caught hold of her and put his hand in her mouth and tried to take her clothes off and stated that today he had got the chance. She pushed her father-in-law and ran away from there but she noticed that the door of the room was bolted from inside. She informed all these facts to her mother-in-law but her mother-in-law asked her not to raise her voice and keep her mouth shut.
7. The complainant has alleged that on 07.07.2020 at about 11:00 AM, her husband, father-in-law and mother-in-law gave beatings to her as she had made a phone call to her father. She has alleged that on 09.07.2020 her father and her tauji visited her matrimonial home on the occasion of birthday of her husband and gave a sum of Rs.51,000/- to her husband. At that time, father-in-law of the complainant again demanded Rs.2,50,000/- and a Honda City car from father of the complainant. When father of the complainant showed his incapacity to pay the same, her in-laws raised a quarrel with father of the complainant and they asked the complainant to accompany her father to her parental home.
8. The complainant has alleged that on 10.07.2020, her Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 4 of 11 brother Keshav came to her matrimonial home to know about her well being but her father-in-law quarreled with her brother and pushed her brother out of her matrimonial home and locked the door. Thereafter, she left her matrimonial home along with her brother. She has alleged that all her clothes, belongings, istridhan and jewellery are still lying in her matrimonial home. Hence, the complaint.
9. On the basis of the above complaint, FIR No.270/2022 under Sections 498-A/406/34 IPC and 3/4 of Dowry Prohibition Act was got registered. After registration of FIR, statements of father, brother and uncles of the complainant were got recorded. After completion of the investigation, charge sheet was filed before the learned Trial Court for offences punishable under Sections 498-A/406/34 IPC and Sections 3/4 of Dowry Prohibition Act against husband Neelansh Gupta, father-in-law Rajesh Gupta, mother-in-law Smt. Neelam, sisters-in-law namely Reetika Gupta and Ananta Gupta.
10. After filing of the charge sheet, learned Trial Court took cognizance of the offences and summoned the accused persons.
11. Vide the impugned order dated 07.02.2024, learned Trial Court held that there are no specific allegation against accused Reetika and Ananta (sisters-in-law) regarding cruelty, harassment, dowry demands as well as entrustment of istridhan articles of the complainant and refusal to return the same to the complainant. Hence, Reetika and Ananta were discharged. Insofar as the other accused persons are concerned, it was observed that there is no specific allegation against accused Neelansh (husband) and Rajesh (father-in-law) regarding Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 5 of 11 entrustment of istridhan articles of the complainant and refusal to return the same to her. Thus, no charge was framed for offence under Section 406 IPC against them but they were charged for offence punishable under Section 498-A IPC and Sections 3/4 of Dowry Prohibition Act. Accused Neelam (mother-in-law) was charged for offences punishable under Sections 498-A/406 IPC and Sections 3/4 of Dowry Prohibition Act. In addition, it was observed that the offence punishable under Section 377 IPC is also made out against accused Neelansh and offence punishable under Section 354 IPC is made out against accused Rajesh. Thus, accused Neelansh was also charged for offence punishable under Section 377 IPC and accused Rajesh was charged for the offence punishable under Section 354 IPC. Charges for aforesaid offences were framed against accused persons. To the above charges, accused persons pleaded not guilty and claimed trial.
12. The present revision petition has been filed by accused Neelansh (husband) against the order dated 07.02.2024 only to the extent that the order directs framing of charge under Section 377 IPC against him.
13. I have heard Sh. Mukesh Mishra, learned counsel for the revisionist and Sh. A. K. Srivastava, learned Chief Public Prosecutor for the State.
14. Learned counsel for the revisionist submitted that the allegation of the complainant regarding acts of unnatural sex by the present revisionist is vague and without any particulars. He submitted that no dates on which the revisionist allegedly committed unnatural sex with the complainant have been disclosed by her. He submitted that there is no medical evidence Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 6 of 11 to support the allegation of unnatural sex committed by the present revisionist with the complainant. He pointed out that the present FIR was not even got registered for the offence under Section 377 IPC. He also pointed out that the prosecution had not filed the charge sheet under Section 377 IPC against the revisionist. He submitted that the learned Trial Court has erred in framing charge for offence under Section 377 IPC against the revisionist.
15. Learned counsel for the revisionist also submitted that in any event, after the amendment of the IPC in the year 2013, sexual intercourse or a sexual act by a husband with his wife, who is above fifteen years of age cannot be considered as an offence even such act is committed in an unnatural manner and without the consent of the wife. In this regard, he has referred to order of the Hon'ble High Court of Madhya Pradesh reported as Umang Singhar Vs. State of Madhya Pradesh (order dated 21.09.2023 in M. CR. C. No.59600/2022); order of the Hon'ble High Court of Madhya Pradesh in the case of Manish Sahu Vs. State and Sunita Sahu (order dated 01.05.2024 in Miscellaneous Criminal Case No.8388 of 2023) and the order of the Hon'ble High Court of Allahabad in the case of Sanjeev Gupta Vs. State of UP and Anrs., (order dated 06.12.2023 in Criminal Revision No.2618 of 2019).
16. I have perused the record.
17. The complainant in her complaint, insofar as the alleged commission of acts of sex in unnatural manner are concerned, has alleged as follows:
"That my husband used to show blue films on his mobile phone to Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 7 of 11 me and further asked me to do the act as per the girl was doing in the blue film. My husband has forcefully did unnatural sex with me due to which I suffered unbearable pain in my back portion and this was repeated several times and if I refused to do so then my husband has given beatings to me. I have told this fact to my mother-in-law then she has stated that Neelansh is your husband and he can do anything with you. I have not told anything to my mother due to shyness"
18. I find substance in the submission made on behalf of the revisionist that the allegation of the complainant with regard to acts of unnatural sex is totally bereft of particulars. In her statement under Section 161 Cr.P.C, though the complainant has affirmed the contents of her complaint but she has not disclosed anything further about the alleged acts of unnatural sex. The FIR was got registered for offences under Sections 498-A/406/34 IPC and under Sections 3/4 of Dowry Prohibition Act. The complainant apparently was not subjected to medical examination. Under these circumstances, I find substance in the submission of the learned counsel for the revisionist that there was no sufficient material before the learned Trial Court for framing the charge under Section 377 IPC against the revisionist.
19. Moreover, Hon'ble High Court of Madhya Pradesh in the case of Manish Sahu Vs. State and Sunita Sahu (supra) has held as follows:
"9. Section 375(a) of IPC (amended definition) includes penetration of penis, to any extent, into the vagina, mouth, urethra or anus of a woman or make her to do so with him or with any other person. Thus, the act of unnatural sex has been made a part of definition of "rape". Section 375(a),
(b), (c) & (d) of IPC includes all sorts of unnatural acts. Therefore, if a person penetrates his penis into the mouth, urethra or anus of a woman, would be guilty of committing rape.
10. Now the only question for consideration is as to whether a husband during the subsistence of marriage while residing together can be said to be guilty of marital rape or in other words, whether consent of wife residing along with her husband during the subsistence of marriage can claim that the sexual act was committed with her without her consent.
11. Section 375 Exception 2 of IPC provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 8 of 11 years of age, is not rape. The only exception to this provision is Section 376-B of IPC where the sexual act with his own wife during the separate living on account of judicial separation or otherwise would be a rape.
12. Thus, when rape includes insertion of penis in the mouth, urethra or anus of a woman and if that act is committed with his wife, not below the age of fifteen years then consent of the wife becomes immaterial.
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16. Thus, it is clear that a consensual sexual conduct between adults of the same sex cannot be termed as an offence under Section 377 of IPC. Thus in nutshell, it can be said that if an unnatural sex takes place between two persons of either same gender or different gender with the consent of both the parties, then it would not be an offence under Section 377 of IPC.
17. Thus the consent of both the parties is necessary for taking the act out of the purview of Section 377 of IPC. However, this Court after considering the amended definition of "rape" as defined under Section 375 of IPC has already come to a conclusion that if a wife is residing with her husband during the subsistence of a valid marriage, then any sexual intercourse or sexual act by a man with his own wife not below the age of fifteen years will not be rape. Therefore, in view of the amended definition of "rape" under Section 375 of IPC by which the insertion of penis in the anus of a woman has also been included in the definition of "rape" and any sexual intercourse or sexual act by the husband with her wife not below the age of fifteen years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance. Marital rape has not been recognized so far.
18. Under these circumstances, this Court is of considered opinion that the allegations made in the FIR would not make out an offence under Section 377 of IPC. My view is fortified by a judgment passed by Co- ordinate Bench of this Court in the case of Umang Singhar Vs. State of Madhya Pradesh, Through Station House Officer and Another reported in 2023 SCC OnLine MP 3221.
19. Another submission made by counsel for the applicant that since respondent No.2 did not make the allegation of unnatural sex on the first occasion clearly falsifies the allegations made in the second FIR and they are afterthought in nature is concerned, this Court is of considered opinion that after having come to a conclusion that the act of unnatural sex by a husband with his legally wedded wife residing with him is not an offence under Section 377 of IPC, no further deliberations are required as to whether FIR was lodged on the basis of frivolous allegations or not.
20. For the reasons mentioned above, this Court is of considered opinion that even if the entire allegations made by respondent No.2 against the applicant are considered on their face value, still no offence under Section 377 of IPC would be made out.
21. Accordingly, FIR in Crime No.377/2022 registered at Police Station Kotwali Jabalpur and criminal prosecution of the applicant, is hereby quashed.
Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 9 of 1122. Application succeeds and is hereby allowed" (emphasis added)
20. Hon'ble High Court of Allahabad in the case of Sanjeev Gupta Vs. State of UP and Anrs (supra) after taking note of the order of Hon'ble Madhya Pradesh High Court in Umang Singhar vs. State of Madhya Pradesh (supra) held as follows:
"34. Thus, on perusal of aforesaid judgement also it appears 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, comprised under Section 377 IPC are included in Section 375 (a) IPC as observed by the High Court of Madhya Pradesh in above case. In proposed Bhartiya Nyay Sanhita which is likely to replace IPC, no provision like Section 377 IPC is included therein. The charge of committing matrimonial cruelty against the revisionist is proved in this case and 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.
35. 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. 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."
(emphasis added)
21. I was not referred to any judgment or order on behalf of the prosecution taking a contrary view. Under these circumstances, I respectfully follow the above judgments of Hon'ble High Court of Madhya Pradesh and the Hon'ble High Court of Allahabad.
22. Considering the totally of facts and circumstances of the case, I am of the view that the impugned order of the learned Trial Court to the extent that it directs framing of the charge for offence under Section 377 IPC against the revisionist is liable to be set-aside. Accordingly impugned order dated 07.02.2024 to the extent of direction of framing of charge under Section 377 IPC against revisionist Neelansh Gupta is set-aside. The revision Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 10 of 11 petition is disposed off accordingly.
23. Copy of this order along with Trial Court record be sent back.
24. File be consigned to the Record Room.
Announced in the open (SARITA BIRBAL)
Court today i.e on Principal District & Sessions Judge,
11th July, 2024 North East, Karkardooma Courts, Delhi.
Cr. Rev. no.44/24 Neelansh Gupta Vs. State Page 11 of 11