Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Pradeep Kumar Srivastava, JJ. affirmed the Judgment of lower court granting a divorce to a lady under Section 13(1) of the Hindu Marriage Act, 1955, on the ground that her husband committed forcible unnatural sex with her.

The issue, in this case, was as to whether a marriage can be dissolved on the basis of allegations of forcible unnatural sex with wife. Facts in the case were that a lady (respondent herein) lodged an FIR against her husband (appellant herein) for offences under Sections 498A, 323, 504 and 377 the Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act, 1961. She filed a petition seeking divorce on the grounds that her husband committed forcible unnatural sex with her several times after marriage. On her refusal to comply with his demands, he beat her up and threatened to not spare her 5-year old daughter and make sexual relations with her as well. He also demanded Rs 40 lakhs and a car in dowry after marriage. She was granted divorce on the basis of her allegations. Husband challenged the judgment of the lower court by way of the present appeal, on the ground that there was no evidence of dowry demand, harassment or unnatural sex. Further, it was argued that medical report had been ignored and the lower court had relied upon the unsupported solitary statement of his wife by ignoring contradictions in her own testimony.

The Court pointed out that no cross-examination had been done by the husband on the point of unnatural sex because of which it was assumed that those facts had been proved against him. Regarding the contention that wife’s statements were not supported by any witnesses, it was concluded that all the matrimonial wrongs were done inside the wedlock which meant that these were private affairs of the parties. Hence, gathering independent witnesses was not possible. Regarding medical examination, it was concluded that the petition for divorce was filed much after the date of the incident of unnatural sex and sodomy so the medical report could not be obtained.

The Court agreed with the view taken by the Kerala High Court in Bini T. John v. Saji Kuruvila, 1997 SCC OnLine Ker 27 and Karnataka High Court in Grace Jayamani v. E.P. Peter, 1981 SCC OnLine Kar 208 that unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a woman or wife was a criminal offence and a marital wrong amounting to cruelty which was a good ground for dissolution of marriage. It was observed that the standard of proof required in a matrimonial case is preponderance of probability.

The Court also noted that appellant’s first wife had divorced him for similar reasons, which fact supported the wife as far as unnatural sex was concerned. It was held that since the wife was not a consenting party, she would not be in the position of an accomplice; and her testimony could be accepted without corroboration if it inspired confidence. Thus, the impugned judgment was affirmed and the appeal was dismissed.[Sanjeev Gupta v. Ritu Gupta, 2019 SCC OnLine All 2255, decided on 24-05-2019]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. allowed the petition filed by the husband and directed the Court of Judicial Magistrate First Class to stop all the proceedings against him under Section 376 of the Penal Code, 1860.

In the present case, the petitioner and the first respondent were in love with each other and petitioner had promised to marry her. Respondent had sexual intercourse with the petitioner on the basis of the promise of marriage. When the petitioner took her to the house of his relatives, they threatened her. Apprehending that they would harm her she escaped and reported the matter to police and charges under Section 376 of Penal Code, 1860 were set against him. After a short time span, both petitioner and respondent solemnized their marriage under the Special Marriage Act, 1954. Petitioner sought to set aside the proceedings against him by invoking power of the Court under Section 482 of the Code of Criminal Procedure, 1973.

The main question to be considered by the Court was whether the marriage between the accused and the victim can be considered as a sufficient ground to quash the prosecution proceedings against the petitioner.

The respondent submitted that she had no grievance against the petitioner and no objection in setting aside the proceeding against him. In the affidavit filed by the respondent she had stated that she was forced to sign the first information statement at the instance of her mother and other relatives and that she had no intention to implicate the petitioner in a case of rape.

The Court placed relevance on Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509 where the principle was laid that if it was found that from the inception the accused had promised the prosecutrix to marry her without any intention to marry and the consent for sexual intercourse was based on such promise then such consent could be said to be obtained on a misconception of fact as per Section 90 of IPC. It was also acknowledged that consensual physical relationship between the parties would not constitute an offence punishable under Section 376 of IPC and it must be carefully examined that whether the accused had actually wanted to marry the victim or had made a false promise of marriage only to satisfy his lust.

It was noted that in the present case, the petitioner had no fraudulent intention in promising marriage to the respondent. The promise made by him was not a false promise made only with the intention to satisfy his lust. This was evident from the fact that he married the victim lady within a short period after the incident.

Considering all the facts and circumstances it was a fit case for exercising jurisdiction under Section 482 CrPC, and proceedings against petitioner were set aside.[Denu P. Thampi v. X, 2019 SCC OnLine Ker 1639, decided on 27-05-2019]