Domestic abuse – rights of victim and laws involved

Section 498-A of the Indian Penal Code covers dowry-related harassment. Likewise, provisions of criminal law, a woman can utilize the threat of going to court to prevent this sort of harassment. The Indian Penal Code additionally addresses dowry deaths in section 304-B. If there is death of a woman because of “unnatural causes” within the seven years of her marriage and has been harassed for dowry before her death, the Courts will assume that it is a case of dowry death. The spouse or in-laws will then, at that point need to prove that their harassment was not the cause of her passing. Dowry death is punishable by imprisonment of at least seven years. When filing an FIR (First Hand Report), in a case where a woman is suspected that she has been murdered after a history of torture and abuse because of dowry demands, the complaint should be filed under section 304-B rather than under section 306, which deals with abetment to suicide. Section 306 should be invoked when a woman commits suicide because of dowry-related harassment.

The rights of victims against domestic violence include:

  1. The right to be reasonably protected from the accused refers to having separate waiting areas and/or report times for court. It does not afford police protection in your home or elsewhere.
  2. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. Court staff will notify you of court proceedings, but you’ll need to remember to update the court anytime your contact information changes so they can do so.
  3. The right not to be excluded from any such public court proceeding, until and unless the court, after getting a clear and convincing evidence, comes to a conclusion that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding. This states that you have all the right to be present during the court proceedings unless the judge thinks that hearing the testimony of other witness might make changes in your perception of the incident, in which case the judge might have you sequestered until after you give your testimony.
  4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. This gives you the option to provide a written victim impact statement or to speak in court before the judge deciding on a punishment.
  5. The reasonable right to confer with the attorney for the government in the case. This allows to meet with the prosecutor about your case.
  6. The right to full and timely restitution as provided in law. Restitution is paid to cover the costs the victim incurred related to the crime. Restitution might be given for medical bills, counselling costs, lost wages, stolen property, and more. It does not cover “pain and suffering” or other damages. Those are managed in civil court.
  7. The right to proceedings is free from unreasonable delay. Victims have the right to speedy trials, too. Unfortunately, case backlogs and staffing issues mean courts must take liberty with the term “unreasonable delay.”
  8. The right to be treated with fairness and with respect for the victim’s dignity and privacy. This one shouldn’t have to be stated, but it does.

In 1983, domestic violence was recognized as a specific criminal offense by the introduction of section 498-A into the Indian Penal Code. This section deals with cruelty by the spouse or his family towards a married woman. Four types of cruelty that are dealt with by this law are:

  • conduct that is likely to drive a woman to suicide,
  • conduct which is likely to cause grave injury to the life, limb, or health of the woman,
  • harassment to force the woman or her relatives to give some property, or
  • harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property.

The punishment is imprisonment for up to three years and a fine. The complaint against cruelty need not be lodged by the person herself. Any relative may also make the complaint on her behalf.

Two Lawyers held for contempt of Court by the Madras High Court

In the year 2020 a writ petition was filed accusing Ms. Poornima, the then High Court registrar, of not passing 12th Standard.A Bench consisting of Chief Justice Sahi and Justice Sethilkumar found that the allegation was false thereby dismissing the petition.

The first bench found the Advocate B Sathish Kumar, the advocate who moved the plea, guilty of contempt of court thereby imposing him of a fine of Rs. 5 lakhs.

Sathish Kumar then filed an affidavit apologising and mentioning that he moved the plea due to the insistence of his seniors, Vasudevan.

When he was questioned the senior denied the allegations however the court remained unconvinced. It was later discovered that Vasudevan had paid the cost imposed of Kumar by the first bench.

A bench of justice PN Prakash and RN Manjula took up the matter of High Court of Madras v. B. Satish Kumar and Ors. on the reference made by a bench headed by the Chief Justice.

The passed an order on 27th August 2021 stating that they were completely satisfied with the fact that the two lawyers had acted together and plotted a devious plan thereby manufacturing a frivolous affidavit which was a calculated move to not only force out the then registrar but also bring down the prestige of the High Court. The bench added that the lawyers circulated the petition in the press even before it was admitted before the court. They added that this led to bringing the administration of court before the public eye and thereby dishonouring the institution.

The court expressed its displeasure towards this action of the lawyers. The bench then stated that being the officers of the court it was their additional responsibility to avoid situations which would damage the honour of the society as it is the very institution which gives them their identity.

The Court concluded that both advocates Sathish Kumar and Vasudevan were guilty of contempt of Court on charges earlier framed under Section 2(c)(iii) of the Contempt of Courts Act, 1971and Section 2(c)(i) read with Section 12(1). The court imposed a fine of Rs. 2000 for each charge thereby a total of Rs. 6000 for the three charges and added that if he defaulted this, he would have to go through a simple imprisonment of one week for each charge.

Once the payment was made Kumar would be allowed to resume his High Court practice. This sentence was given after taming into consideration that he belonged to a poor family along with which he had apologised and had already been slapped with a payment of Rs. 5 lakhs as cost.

Vasudevan on the other hand because was not apologetic for his actions he was sentenced to undergo imprisonment for one month for each charge along with Rs. 2000 for each charge summing up to 3 months of imprisonment and a fine of Rs. 6000. Along with this he was barred from practicing before the High court for a period of one year. The case was then dismissed.

The SC states that the High Courts not to pass oral orders against stay of arrest

Approaching the Gujrat High Court, an Accused in the case of SalimbhaiHamidbhai Menon vs. NiteshkumarMaganbhai Patel pleaded for quashing of FIR lodged against him Sections 405, 420, 465, 467, 468 and 471 of the Indian Penal Code 1860. The Accused did so by filing a petition u/s 482. While this petition was pending, the Accused Person was arrested. However, the Gujrat High Court directed to release the Accused when the proceedings of these petitions began. This order was an oral one and was not noted down in the final judgement.

S.482 of IPC states that:

‘Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.’

This means that as per S.482 of IPC, High Court have the power to take steps and give orders that are necessary to take actions under the IPC. The Supreme Court noted that the Gujrat High Court did in fact have complete power and jurisdiction to hear the case. The Supreme Court further stated that the HC also has to power to stay the arrest of Accused Persons u/s 482 however, it has to be done in writing.

The Supreme Court explained that Oral Orders for stopping arrest instead of written ones not only reduce judicial accountability but also set dangerous precedents for other courts to follow. Written Orders are important in case of stay on arrest of Accused because the reasons for such a stay have to be clearly mentioned and explained in writing for purposes of reasoning and fair decision-making.

Accepting the Appeal, the Supreme Court also stated:

‘The Court must reflect an application of mind to relevant facts and circumstances, including:

  • The nature and gravity of the allegations;
  • The seriousness of the alleged offence(s);
  • The position of the accused and the likelihood of their availability for investigation; and
  • The basis on which astay of arrest has been granted till the next date.’

Offences against Human Life Ss. 299-318

  1. Culpable Homicide [Section 299,301 and 304]

The first offences against human life are culpable homicide. Causing the death of an animal is not murder; it comes under the head of offence of mischief or to cruelty to animals under the cruelty to animals act. Life and death of a human being is a homicide.

There are two kinds of homicide namely lawful and unlawful homicide. 

The cases of lawful homicide fall under general exceptions. For example: when death is caused by accident or in the exercise of the right of private defense of the body. Unlawful homicide: 

  • Culpable homicide not amounting to murder (Section 299)- it is a less serious offence than murder and it is punishable with death or imprisonment for life. Culpable homicide can be analyzed with the intention of causing death, with the intention of causing such bodily injury as is likely to cause death, with the knowledge that he is likely, by such act, to cause death. 
  1. Murder (Section 300) – second offence is offence against human life.

             Culpable homicide can be murder and it is analyzed under:

  1. If the act done with the intention of causing death.
  2. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.
  3. If it is done with the intention of causing bodily injury and the bodily injury intended to be afflicted is sufficient, in the ordinary course of nature, to cause death.
  4. If the offender knows that the act causes a dangerous death, or any bodily injury as is likely to cause death and commits such act without any excuses for incurring the risk of causing death or any such injury.

When culpable homicide is not murder (Section 300, Exceptions 1 to 5)

  1. Grave and sudden Provocation (Exceptions 1)

Culpable homicide is not murder, if the offender, whilst deprived of the power of self-control by grave and sudden provocation, cause the death of the person who gave the provocation 

  • Is not sought or voluntarily provoked as an excuse for killing or doing harm
  • Is not given by anything done
  1. Exceeding right of private defense (Exception 2)

Culpable homicide is not murder if the offender, in the exercise in good faith of right of private defense, exceeds the legal limit and causes the death of the person without any intention of doing more harm than necessary.

  1. Public servant exceeding his power

Culpable homicide is not murder if the offender is a public servant and breaks his legal powers and caused death by any act believes by him in good faith, to be lawful and necessary for the due discharge of his duty and without ill will towards the person killed.

  1. Sudden fight (Exception 4)
  • Without premeditation
  • In a sudden fight
  • In the heat of passion
  • Upon a sudden quarrel 
  • Without taking undue advantage
  • Without acting in a cruel manner
  1. Death caused with victim’s consent 

If the consent of death is being caused then, the offence is not that of murder, but a case of culpable homicide not amounting to murder.

  1. Death causing by rash or negligent act (Section 304 A)

Rashness and negligence are not the same thing. A simple negligence cannot be construed to mean rashness. There are degrees of negligence and rashness, and in order to amount to criminal rashness or has been of such a degree as to amount to taking hazard, knowing that the thereby.

Criminal rashness is very a dangerous or a wanton act with the knowledge that it is so and that it may cause injury, but without any intention to cause injury, and knowledge that it will probably be caused. 

Criminal negligence is the culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury.

  1. Causing Dowry death (Section 304 B)

In this section:

  • Death of a woman caused by any burns or bodily injury or occurs otherwise than under normal circumstances within the seven years of her marriage.
  • It is shown that before her death; she was being tortured by her husband subjected to cruelty or harassment by her husband or any relative of her husband, for or in connection with any demand for dowry.

The offence of dowry death is a cognizable and non-bail able offence. 

Important factors of section 304B

  1. The wife should have died because of burns or any bodily injury
  2. Her death should have occurred otherwise than under normal circumstances.
  3. Such death should have taken place within seven years from the date of her marriage.
  4. Soon before her death, she should have been subjected to cruelty or harassment by her husband or any of his relatives.
  5. Such cruelty or harassment should be for, or in connection with, any demand for dowry.

Offences related to Election section

  1. Bribery -As per Section 171B a person is said to commit bribery when he/she gives gratification to someone with the object of inducing such person with regards to practicing his/her electoral right, or as a reward, after such person has exercised his/ her electoral right after being induced. The person taking such bribe and being induced into practicing his/her electoral right differently is also guilty of the offence of bribery.

For this section, a person is said to give gratification when they offer/attempt to give/ offer or attempt to procure gratification. The person accepting or attempting to get gratification for changing his/her pre-decided course and acting according to the wish of the one giving such gratification shall be said to have received gratification.

  1. Undue influence at an election –Section 171C deals with undue influence at an election. It refers to the voluntary interruption or an attempt to interrupt the free exercise of an electoral right. Interference with the free exercise of an electoral right as per this provision includes-

-Threatening (with injury of any kind) a candidate or a voter or a person in whom a candidate/voter is interested in, or;

-Misleading or attempting to induce a candidate/voter to believe that they, or any person that they are interested in, shall be subjected to Divine displeasure or spiritual censure.

Exercise of a legal right without any mala fide intent to interfere with someone’s voting right, declaration of public policy or a promise of public action does not count as interference as per the meaning of this section.

As per Section 171F, undue influence at an election is punishable with imprisonment which may extend to one year, or a fine, or both.

  1. Personating at an election-

Section 171D says that a person attempting to vote twice or vote by using unfair means is guilty of the offense of personating. Each one is to cast their own vote. For example, a person applying for a voting paper by using someone else’s name, whether living or dead, or under a fictitious name, or has voted in such an election and wants to vote again is guilty of personation. A person abetting or attempting to procure a voting paper by using any other person for their cause shall also be guilty of the offense of personation.

It is important to note that a person authorized to vote as proxy for an elector under any law which is at force at that time shall not be guilty of this offence.

  1. False statement in connection with an election-

Section 171G states that whoever makes/publishes a statement in public, knowing/believing it to be false or not believing it to be true, and disguising it to be a statement of fact, with an attempt to malign the character or conduct of a candidate to disrupt the result of elections shall be punishable with fine.

  1. Illegal payments in connection with elections –

As per  Section 171H, a person responsible for incurring/authorizing expenses to promote their election campaign, which may include holding public meetings, press conferences, advertising, circulars or publications, without any general or special authority in writing of a candidate shall be punishable with a fine which may extend to Rs. 500.

However, if such a person, who has borne expenses not exceeding Rs. 10 without authority manages to obtain authority in writing of the candidate within days from the date on which such expenses were incurred, this provision would not be applicable as such person would be deemed to have acted with the permission of the candidate.

  1. Failure to keep election accounts-

As per Section 171 of the Code, a person who is responsible for keeping an account for the expenses incurred in connection with an election, as per the law which is in force at that time or as per a rule which has the force of law, when fails to do so, shall be punishable with a fine which may extend up to Rs. 500.

Offences against State Under IPC section 121-130.

  1. Section 121-It basically says that whoever wages war against the government of India or attempts to wage such war or abets the waging of such war shall be punished with death or imprisonment for life shall also be liable to fine.

Ingredients of section 121-

-Accused must wage war 

-Attempt to wage war 

-Abet the waging of such war 

-Against the government of India

Under, Section 121 it has been made clear that ‘war’ is not conventional warfare between countries, however, joining or organising an insurrection against the Government of India is a form of war. Waging war is a way to accomplish any purpose of public nature by violence. In this offence waging war intention and purpose are considered to be the most important factors.

  1. Collecting arms with the intention of waging war against the Government of India-To invoke Section 122 of the Code following ingredient must be satisfied

    (1) A person collects a men, arms or ammunition, or otherwise prepares to wage war,; and

(2) He does so with the intention of either waging war against the  Government of India or being prepared to wage war against Government of India.

 The offence under Section 122 of The Indian Penal Code is Cognizable, non-compoundable, non-bailable and triable by Court of Session.

  1. Assault on a higher official –

Section 124 deals with an assault on the President, Governor and other members of the government. This is an extension of the second clause of section 121A which makes conspiracy to show criminal force to the Government of India or any State Government punishable and it specifically deals with the executive powers such as the President and the Governor. The principle that this section lies on is the one where the heads of the State should be free from fear of personal harm and injury while discharging their legal duties. This protection is not to be considered absolute and extends only as long as they discharge their official functions.

  1. Escape of a State Prisoner-

Section 128 to 130 deals with State prisoners; State prisoners are those who have been arrested to maintain peace and tranquillity with other friendly nations and for the security of the Indian State. Sections 128 & 129 make it an offence for a public servant to voluntarily allow a prisoner of State or war to escape. It is punishable with life imprisonment up to 10 years and fine. If the prisoner escapes due to the negligence of the public servant, this is punishable with simple imprisonment for a term up to three years and fine. Section 130 applies to all persons who aid and assist a state prisoner to escape, not just a public servant.

  1. Sedition –

Sedition in the ordinary sense means a stirring up of rebellion against the Government. Sedition is thus a crime against society frequently leading to treason. The essential ingredients of Section 124A are, there is a bringing or attempting to bring into hatred or exciting or attempting to excite disaffection against the Government of India, such act or attempt may be done by words, either spoken or written or by signs or by visible representation & this act must be intentional.

-Essentials of section  124A-

-Sedition can be made in various ways- by words, written or spoken, by signs, or by visible representation. Seditious deeds include music, publications, performances (films and puppets), sculptures, photographs, cartoons, paintings and any other method.

-Brings or attempts to bring into hatred or contempt -The expression ‘brings or attempts to bring into hatred or contempt’ attempts to not interfere or interfere less with the freedom of speech.

-Excite Disaffection-The term ‘disaffection’ includes disloyalty and all other feelings of enmity. In order to amount to sedition, an act of disaffection must be excited among the people. In other words, the feeling of disaffection must be stirred among the people of the State.

As per this Section, the disaffection can be excited in several ways, such as:

  • Poem,
  • Allegory,
  • Historical or philosophical discussion,Drama, etc.

In order to amount to sedition, the publication is necessary. The publication can be of any kind and manner, including posts.

-Government Established by law -This expression refers to the existing political system which includes the ruling authority and its representatives. In other words, it refers to the people who are authorised by law to administer the Executive Government in any part of India. It includes the State Government as well as the Central Government. 

An offence to come under this section must be directed toward the Government of India.

Criminal Conspiracy Section 120A-120B

  1. Definition of Criminal Conspiracy under section 120A-The criminal conspiracy as it now stands is the agreement of two or more persons to do an illegal act or to do legal act by illegal means .A joint evil intent is necessary to constitute crime .No physical action need to take place .No consummation of crime need to be achieved or even attempted .
  2. Ingredients under section 120A –There should be an agreement between two or more person who are alleged to conspire. –The agreement should be to do or cause to be done an illegal act or an act which may not itself be illegal by illegal means.
  3. Nature and scope of section 120A –

-The presence of the agreement itself between two or more persons to carry out a crime gives orgin to the offence irrespective such act has been  committed or not.

-Meeting of minds is required for commission of crime .

-The section does not state that for conspiracy to be committed the conspirators must agree to commit an illegal act rather the conviction of the individuals is established when they agree to be a part of one of such illegal acts .

-In case Mohd Hussain Umar Kochra Vs KS Dalip Singhji The Apex Court has elucidated on the part played by each member in a conspiracy 

Commission of conspiracy might not exist when different persons act in the same manner but independently just because of the fact the methods they applied were similar for committing the illegal act.

Every individual who has participated in the commission of a crime in  furtherance of a conspiracy id guilty for all the acts of its conspirators if they were directed towards accomplishing a single object.

  1. Proof of conspiracy –It is very difficult to provide primary evidence for providing a charge of conspiracy. Further “A mere suspicion without the presence of any direct or indirect evidence instituting the prior meeting of minds , cannot be the grounds for conviction” was held PK Naryana Vs State of Kerela

Certain conditions as provided in section 10 of the Indian Evidence Act ,1872 that is required to be proof –

-The involvement of the parties forming an agreement must be proved by prima facie evidence .

-If this is satisfied than anything written , done or said in furtherance of the common intention will be evidence against all the parties.

-Anything done ,written or said by any of the conspirators post the formation of common intention by any of the parties would be admissible. This is the principle of collective liability which has been discussed under section 34 of the IPC.

-In case Sachin Jena and Another Vs State of west Bengal-The supreme court recognised that direct evidence of common intention is rarely available and therefore is to be inferred from the proven facts /circumstances of the case .Circumstantial evidence can be used to ascertain the guilt of the accused and to proof common intention.

  1. Punishment of criminal conspiracy under section 120B of IPC-

                       Section 120-B prescribes the punishment for the commission of the crime of criminal conspiracy. According to Section 120-B, if the parties involved in the conspiracy, conspired to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or more, shall be punishable in the same manner as if he/she had abetted the commission of such an offence, if no explicit punishment for the commission of such a conspiracy has been provided for, by the Code.

However, if the parties involved in the conspiracy, conspired to commit an offence punishable with terms not prescribed previously, such persons shall be sentenced to imprisonment for a term not exceeding six months, or a fine, or both.

abetment SS 109-120 OF IPC

  • Punishment for different kind of abetment (Section 109-120)
  1. If the act abetted is committed in consequence of the abetment, that is when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitute the abetment, and no express provision is made for the punishment of such abetment, the punishment which is prescribed is the same as for the offence abetted.
  2. If the person abetted does the act with a different intention or knowledge, then the abettor is to be punished as if the crime has been done with the intention or knowledge of the abettor.
  3. If the act committed is different from the act abetted but is a probable consequence of the abetment and is done under the influence is constituted the abetment.
  4. If the act is committed together with another act which is the probable consequence of the abetment and is done under the influence of the instigation, the abettor is liable to be punished for each of the crimes. 
  5. If the effect caused by the act abetted is different from the effect intended by the abettor but the abettor is known for the cause then the abettor is liable for the effect.
  6. If the abettor is present when the offence is committed then he is consider to commit such offence.

Abetment of serious offences (Section 115-117)

This section states that the imprisonment for abetting offences punishable with death, imprisonment for life and imprisonment.

  1.  A person abets of an offence is punishable with death penalty or imprisonment for life Even if the offence is not committed, then he is punishable with imprisonment for seven years with fine. The abettor is liable to imprisonment up to 14 years with fine if the act of abetment causes to hurt any person.
  2. If a person commit an offence and punishable with imprisonment and if that offence is not committed in consequences of the abetment. He is punishable with imprisonment for that offence for a term upto one-fourth of the longest term.
  3. Section 117 punishes abetment of commission of an offence by the public generally or by more than ten people with three years with fine.

Other punishment for abetment (Sections 118-120)

  1. If a person intending to facilitates the commission of an offence punishable with death penalty or life imprisonment for concealing or facilitating the commission of an offence.
  • If the crime is committed then the person is liable for the punishment up to seven years and fine
  • If the crime is not committed then the person is punishable with imprisonment up to three years and fine.
  1. If any public servant intending to hide a crime by any act or omission or the use of encryption or any other information hiding tool with intent to facilitate the commission of the offence.
  • Then the person is punishable with imprisonment up to one-half of the longest term provided for that offence, or with such fine as is provided of that offence.
  • And if the offence is punishable with death penalty or life imprisonment then he is punishable with imprisonment of 10 years.
  1. If any person intending to facilitate to commission of an offence punishable with imprisonment and makes any false representation is punishable. 
  • If offence is committed then imprisonment up to one fourth of the imprisonment prescribed for that offence, or with fine.
  • And if offence is not committed the imprisonment up to one-eighth of the imprisonment prescribed for that offence or fine.

Abetment Ss. 107-108 OF IPC

Abetment 

Abetment means instigate, to encourage, to help. It consists three acts laid down in section 107.

  1. Instigating a person to commit an offence. {Section 107 Clause (1)}

A person instigates the doing of a thing that instigates any person to do that thing. A person instigates the other person the doing of a thing who by willful misrepresentation or willful concealment of a material fact which he is bound to disclose. The crime of abetment is complete as soon as the abettor has incited another to commit a crime, whether the latter consent or not, and whether having consented, he actually commits the crime or not.

E.g.:- A was not armed with a stick, but B gave a general order to beat, whereupon A picked up a stick and used it. It was held that B was guilty of abetting the assault.

  1. Engaging in a conspiracy to commit it. {Section 107 Clause (2)}

Conspiracy consist the agreement of two or more persons to do any unlawful act or to do a lawful act by it is sufficient if he engages in the conspiracy. by engaging in conspiracy for committing a crime.

In one case Emp. V. Punday, (1871 3 N.W.P. 3106), the accused represented to a women who prepared herself to commit suicide in their presence, that if she were to say ‘Ram Ram’, she would become sati. The pyre was set on fire, and the women died. It was held that accused person was guilty of abetment of suicide.

  1. Intentionally aiding a person to commit it.{Section 107 Clause (3)}

The third one is abetment by intentionally aiding the doing of that thing. A person is said to aid the doing of an act that, either prior at the time of the duty of an act, does anything in order to facilitate the duty of that act and thereby facilitates the duty thereof.       

General Provisions:

  1. To constitute the crime of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to constitute the crime should be caused.
  2. To constitute the crime of abetment, it is not necessary that the person abetted should be capable by law of committing a crime.
  3. To constitute the crime of abetment by conspiracy, it is not necessary that the abettor should concert the crime with the person who commits it. It is sufficient if he engages in the conspiracy and commits a crime.
  4. The abetment of the illegal omission of an act may amount to a crime, although the abettor may not himself be bound to do that act.
  5. When the abetment of a crime is an crime, the abetment of such an abetment is also an crime.

Chhattisgarh High Court declares non-consensual sexual intercourse between husband and wife is not a criminal offense

Order of the Addl. Sessions Judge, Bemetara, Distt. Bemetara which framed charges of Sections 498-A, 34, 376 and 377 against Dilip Pandey and others was challenged in the High Court of CHHATTISGARH. According to the brief facts of the case, the applicant and original complainant were married and after a few days of marriage, the applicant was said to have demanded dowry from the wife and also had subjected her to cruelty. The Complainants also states that the husband (applicant) forced physical relations on the wife and further also forced her into unnatural sexual intercourse. Following this, written complaint was filed against the applicants in Bemetara Police Station and a charge sheet under Section 498-A, 377, 376, 34 of the I.P.C. was filed against the applicants. The court framed charges against the applicants and hence aggrieved by this they approached the High Court of CHHATTISGARH. 

The Applicants argued that S.376 which provides for Punishment for Rape is not a valid charge on the applicant since the applicant was lawfully married to his wife and u/s 375 which defines rape and its exceptions, there is no provision which make marital rape a crime. Hence, even if the sexual intercourse was without consent, it would not constitute as rape. The High Court agreeing with this argument stated that since the couple was lawfully married and the wife was above 18 years, the charges of rap would not be valid.

As for the charge of S. 377, it was argued by the applicants’ counsel that the element of ‘voluntarily’ carnal intercourse is an important element and since that was not present, S. 377 does not apply either. The High Court disregarded this argument and held that the wife repeatedly mentioned that the applicant (husband) had unnatural sex with her using his fingers and radish which she was ashamed to admit earlier and hence, the court held that this charge would not be invalidated. 

The court also held that he charges of S.498-A against the applicant was also not invalid. In the explanation the High Court mentioned that statements of the complainant show that after few days of marriage, the wife was subjected to cruelty by all the applicants by abusing her and demanding dowry, the statement of the neighbours also verified these facts. 

In conclusion, it can be stated that Marital Rape is still not recognised as an offence in India, and non-consensual sexual intercourse between husband and wife is not a criminal offense.

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