# Imran Khan @ Ashok Ratna v. State of U.P. & Anr

- **Citation:** (2025) 5 ILRA 633
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-06
- **Case number:** Application U/S 528 BNSS No. 11862 of 2025
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/imran-khan-ashok-ratna-v-state-of-u-p-anr-54596
- **Pages:** 10

## Headnote

Law
-
Criminal
Procedure
Code,1973- Section 161 & 164 -St.ment of
opposite party no.2 recorded u/s 161 and 164
Cr.P.C.- specific allegation of cruelty and also the
harassment against the husband for demand of
dowry-as well as committing unnatural carnal
sex upon his wife against her wishes-to attract
the offence u/s 498A IP- specific demand of
dowry is not necessary-cruelty committed by the
husband is itself sufficient to attract the
ingredients
of
Section-498A
IPC-from
the
perusal of the St.ments of Section 161 Cr.P.C.
and 164 Cr.P.C., offence mentioned in charge
sheet are made out-no ground for quashing.

Application rejected. (E-9)

List of Cases cited:

## Text

5 All. Imran Khan @ Ashok Ratna Vs. State of U.P. & Anr.
633
then
in
that
eventuality,
the
Magistrate/Court
of
competent
of
jurisdiction can treat the application under
Section 173(4) BNSS as a 'complaint case'.

19. In light of the above facts and
above proposition of law, this Court is of
the view that there is no illegality or
irregularity in the order impugned and after
collecting the report from the police station
concerned or the report otherwise the
Magistrate is of the view that no
investigation from the Police is required
and he has rightly directed the present case
to be treated as complaint case.

20. In light of above facts, this Court
is of the view that no interference is
required in the orders impugned. The
present
application
lacks
merit
and
deserves to be dismissed.

21. It is accordingly dismissed.

22. The Court would like to appreciate
the hard work put in by Ms. Shreya Shukla,
Research
Associate,
who
has
drawn
attention to detail and the same shown in
her work of providing legal assistance in
this matter.
---------
(2025) 5 ILRA 633
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 528 BNSS No. 11862 of 2025

Imran Khan @ Ashok Ratna ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Saiyad Iqbal Ahmed, Sharique Ahmed

Counsel for the Opposite Parties:
Manish Kumar Tripathi, G.A.

Criminal
Law
-
Criminal
Procedure
Code,1973- Section 161 & 164 -St.ment of
opposite party no.2 recorded u/s 161 and 164
Cr.P.C.- specific allegation of cruelty and also the
harassment against the husband for demand of
dowry-as well as committing unnatural carnal
sex upon his wife against her wishes-to attract
the offence u/s 498A IP- specific demand of
dowry is not necessary-cruelty committed by the
husband is itself sufficient to attract the
ingredients
of
Section-498A
IPC-from
the
perusal of the St.ments of Section 161 Cr.P.C.
and 164 Cr.P.C., offence mentioned in charge
sheet are made out-no ground for quashing.

Application rejected. (E-9)

List of Cases cited:

1. Shivendra Pratap Singh Thakur @ Banti Vs St.
of Chhattisgarh and Others in Criminal Appeal
No. 2588 of 2024

2. Manish Sahu Vs The St. of M.P. in Misc.
Criminal Case No.8388 of 2023

3. Shashank Harsh Vs St. of M.P., Station
House Officer in Misc. Criminal Case No.40044
of 2023

4. Navtej Singh Johar Vs U.O.I. through
Secretary Ministry of Law & Justice reported in
2018 (10) SCC 1

5. St. of H.P. Vs Rajesh Kumar in Criminal
Appeal No. 2097 of 2014

6. Khanu Vs Emperor 1924 SCC OnLine Sind JC
49

7. Khandu Vs Emperor reported in 1933 SCC
Online Lah 601

8. Aluri Venkata Ramana Vs Aluri Thirupathi Rao
& ors., SLP (Criminal) No.9243 of 2024
634 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Sharique Ahmed, learned
counsel for the applicant, Sri Manish
Kumar
Tripathi,
learned
counsel
for
opposite party no.2 and Sri Ramesh Kumar,
learned A.G.A. for State.

2. The present application has been
filed to quash the entire proceedings of
Criminal Case No. 525 of 2023 (State Vs.
Imran Khan @ Ashok Ratna), arising out of
case crime no. 41 of 2023, under Sections
498-A, 323, 504, 506, 377 I.P.C. and 3/4
Dowry Prohibition Act, Police StationShivkuti, District-Prayagraj, pending in the
court of learned Additional Chief Judicial
Magistrate, Prayagraj, Aligarh, including
the charge sheet dated 28.06.2023 and
summoning/cognizance
order
dated
10.08.2023.

3. Facts giving rise to the controversy
are that the opposite party No.2 has lodged
an
F.I.R.
against
the
applicant
on
23.02.2023 in case crime No. 41 of 2023
under Section 498-A, 323, 504, 506, 377
I.P.C. and 3/4 Dowry Prohibition Act.
Police,
after
investigation,
submitted
charge-sheet against the applicant on
28.06.2023 under Section 498A, 323, 504,
506, 377 I.P.C. and 3/4 Dowry Prohibition
Act, whereupon cognizance has also been
taken by the learned Magistrate on
10.08.2023, which is under challenge in the
present case.

4. The learned counsel for the
applicant has submitted that impugned
proceeding is malicious and illegal on the
following ground:-

i. Though the last date of the
incident, as mentioned in the F.I.R. is of the
year 2019, but the F.I.R. was lodged on
23.02.2023 that is after a considerable
delay. In support of his contention, counsel
for the applicant has relied upon the
judgment of the Apex Court in the case of
Shivendra Pratap Singh Thakur @ Banti
Vs. State of Chhattisgarh and Others in
Criminal Appeal No. 2588 of 2024
wherein the Apex Court quashed the
proceeding on the ground that F.I.R. was
lodged after a delay of 39 days without any
explanation, and F.I.R. itself does not
mention the date or time of the committal
of offence.

ii. Submission of learned counsel
for the applicant submits that no offence
under Section 377 I.P.C. is made out as
applicant and opposite party No.1 are
husband and wife. In support of his
contention learned counsel for applicant
has relied upon Judgments of Madhya
Pradesh High Court in the case of Manish
Sahu v. The State of Madhya Pradesh in
Misc. Criminal Case No.8388 of 2023 as
well as in Shashank Harsh Vs. State of
Madhya Pradesh, Station House Officer
in Misc. Criminal Case No.40044 of 2023,
wherein Single Judge Bench of Madhya
Pradesh High Court observed that when the
wife was residing with her husband and
during the subsistence of their marriage, if
there is an allegation of committing
unnatural sex, then the offence under
Section 377 I.P.C. will not be made out
unless the wife is below 18 years old.

iii. It is further submitted by
learned counsel for the applicant that
opposite party No.2 refused her medical
examination, which would be fatal for her
case. In support of this submission, learned
counsel for the applicant has also relied
upon the Apex Court?s judgement in State
of Himachal Pradesh Vs. Rajesh Kumar
5 All. Imran Khan @ Ashok Ratna Vs. State of U.P. & Anr.
635
in Criminal Appeal No. 2097 of 2014
wherein conviction was set aside by the
High Court which was also affirmed by the
Supreme Court on the ground that if the
prosecutrix never co-operated with the
medical staff, that will adversely affect the
criminality of her version of the event.

iv. It is further submitted by
learned counsel for the applicant that all the
independent witnesses did not support the
version of the opposite party No.2, as
mentioned in her F.I.R. and from her
statement recorded under Sections 161 and
164 Cr.P.C., no offence of demand of
dowry is made out.

v. Counsel for the applicant
further
submitted
that
during
the
investigation conducted in pursuance of
F.I.R. lodged by the police department
against the applicant and opposite party
No.2, opposite party No.2 herself stated
that she was aware of earlier marriage and
subsequent after the divorce of the
applicant, she willingly got married to the
applicant.

5. Per contra, learned counsel for
opposite party No.2 vehemently opposed
the above submission of learned counsel
for the applicant and submitted that there is
no proof that at the time of getting married
to the opposite party No.2, the applicant
was legally divorced with his earlier wife
and
the
affidavit
given
during
the
investigation in pursuance of F.I.R. lodged
by the police department against the
applicant, was given under the pressure of
the applicant as she wanted to save her
marriage. It is further submitted by the
learned counsel for opposite party No.2
that, from the bare perusal of the F.I.R. as
well as statement recorded under Sections
161 and 164 Cr.P.C. Prima facie offence is
made out against the applicant, which is
sufficient for the trial. Therefore, no ground
for quashing is made out.

6. Learned AGA also opposed the
prayer of the applicant and adopted the
argument of learned counsel for opposite
party no.2.

7. After hearing the submission of
learned counsel for the parties and on
perusal of the record, the legal question for
determination arises is whether carnal
intercourse by the husband with his wife
against her wishes will amount to an
offence u/s 377 IPC. For determination of
this question, it would be appropriate to
mention Section 377 IPC, which is being
quoted as under :

"Section
377.
Unnatural
offences.- Whoever voluntarily has carnal
intercourse against the order of nature with
any man, woman or animal, shall be
punished with [imprisonment for life], or
with imprisonment of either description for
a term which may extend to ten years, and
shall also be liable to fine.

Explanation.?Penetration
is
sufficient
to
constitute
the
carnal
intercourse
necessary
to
the
offence
described in this section."

8. Though, from a bare perusal of
Section 377 IPC, it appears that carnal
intercourse with man, woman, or animal
will itself amount to offence, but the
validity of this section was considered by
the Supreme Court in the case of Navtej
Singh Johar vs. Union of India through
Secretary Ministry of Law & Justice
reported in 2018 (10) SCC 1, wherein the
Apex Court observed that consensual
intercourse between two adults would not
636 INDIAN LAW REPORTS ALLAHABAD SERIES
be an offence u/s 377 IPC, and to that
extent, Section 377 IPC was declared ultra
vires to Articles 14, 15, 19 and 21 of the
Constitution of India. However, the Apex
Court
further
observed
that
carnal
intercourse without consent between two
adults or with any animal or minor will still
remain an offence u/s 377 IPC. Two words
in Section 377 IPC are important. One is
'carnal' and another is 'against the order of
nature' (unnatural).

9. The meaning of the word 'carnal' as
per black law dictionary is "means of the
body, relating to the body, fleshy or sexual"
and the word 'carnal' defined as per New
International
Webster's
Comprehensive
Dictionary is "(i) pertaining to the fleshly
nature or the bodily appetites; (ii) sensual,
sexual; (iii) pertaining to the flesh or to the
body; not spiritual; hence worldly."

10. Therefore, from the perusal of the
definition of carnal, it appears that it is
different from the sexual intercourse which
relates only penile vaginal intercourse.
Word unnatural or against the order of
nature has not been defined in the IPC.

11. The courts in the case of Khanu
Vs. Emperor reported in 1924 SCC
OnLine Sind JC 49 as well as Khandu
Vs. Emperor reported in 1933 SCC
Online Lah 601 had interpreted the term
?carnal? to refer to acts which fall outside
penile-vaginal intercourse and were not for
the purpose of procreation.

12. Earlier, it was considered that sexual
intercourse for the procreation is natural and
all other intercourse are unnatural or against
the order of nature, but subsequently, it was
accepted in world, including India, that above
definition of natural sex is no longer valid
definition. In the case of Navtej Singh Johar
(supra), the Apex Court observed that carnal
sex between the member of LGBTQIA+
community, though they are in the minority,
is a natural orientation of sex.

13. Before amendment in Section 375
IPC, only the sexual intercourse by a man
with a woman against her wish was offence
as rape, except in case where a woman is the
wife of a man and above 15 years. Section
375 IPC existing prior to the amendment of
2013 is being quoted as under:

"6. The pre-amended definition of
"rape" as given under Section 375 of IPC
reads as under:?

"375. Rape.- A man is said to
commit "rape"

who, except in the case hereinafter
excepted, has sexual intercourse with a
woman under circumstances falling under
any of the six following descriptions:?

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when
her consent has been obtained by putting her
or any person in whom she is interested, in
fear of death or of hurt.

Fourthly.- With her consent,
when the man knows that he is not her
husband, and that her consent is given
because she believes that he is another man
to whom she is or believes herself to be
lawfully married.

Fifthly.- With her consent when,
at the time of giving such consent, by
reason
of
unsoundness
of
mind
or
intoxication or the administration by him
5 All. Imran Khan @ Ashok Ratna Vs. State of U.P. & Anr.
637
personally or through another of any
stupefying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent.

Sixthly.- With or without her
consent, when she is under sixteen years of
age.

Explanation.-
Penetration
is
sufficient
to
constitute
the
sexual
intercourse necessary to the offence of
rape.

Exception.- Sexual intercourse by
a man with his own wife, the wife not being
under fifteen years of age, is not rape."

14. After the amendment of definition
of 'rape' in IPC by the Act No.13 of 2013,
several sexual acts were also included in
the definition of rape. The amended
definition of rape, as per amended Section
375 IPC, is being quoted as under:

"7. The definition of "rape" was
amended by Act No. 13 of 2013 and the
amended definition of "rape" as defined
under Section 375 of IPC reads as under:?

"375. Rape.- A man is said to
commit "rape" if he?

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so
with him or any other person; or

(b) inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him
or any other person; or

(c) manipulates any part of the
body of a woman so as to cause penetration
into the vagina, urethra, anus or any part
of body of such woman or makes her to do
so with him or any other person; or

(d) applies his mouth to the
vagina, anus, urethra of a woman or makes
her to do so with him or any other person,
under the circumstances falling under any
of the following seven descriptions:?

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when
her consent has been obtained by putting
her or any person in whom she is
interested, in fear of death or of hurt.

Fourthly.- With her consent,
when the man knows that he is not her
husband, and that her consent is given
because she believes that he is another man
to whom she is or believes herself to be
lawfully married.

Fifthly.- With her consent when,
at the time of giving such consent, by
reason
of
unsoundness
of
mind
or
intoxication or the administration by him
personally or through another of any
stupefying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent.

Sixthly.- With or without her
consent, when she is under eighteen years
of age.

Seventhly.- When she is unable to
communicate consent.
638 INDIAN LAW REPORTS ALLAHABAD SERIES

Explanation 1.- For the purposes
of this section, "vagina" shall also include
labia majora.

Explanation 2.- Consent means
an unequivocal voluntary agreement when
the woman by words, gestures or any form
of verbal or non-verbal communication,
communicates willingness to participate in
the specific sexual act:

Provided that a woman who does
not physically resist to the act of
penetration shall not by the reason only of
that fact, be regarded as consenting to the
sexual activity.

Exception
1.-
A
medical
procedure
or
intervention
shall
not
constitute rape.

Exception 2.- Sexual intercourse
or sexual acts by a man with his own wife,
the wife not being under fifteen years of
age, is not rape."

15. From a perusal of the amended
definition of rape, it is clear that earlier
sexual act, which was considered unnatural
as per Section 377 IPC, was also included
in the definition of rape, if the same is
committed against the will of a woman by a
man. Therefore, as per the amended
definition, if there is penile penetration into
the vagina of a woman or insertion of any
object or part of the body not being the
penis into the vagina or anus as well as
applying mouth to the vagina, anus and
urethra of a woman, that would come
within the definition of rape, if same is
committed without her consent. But the
exception (ii) does not create an offence of
rape if any of the above sexual acts is
committed by a man with his own wife, if
she is more than 18 years.

16. The High Court of Madhya
Pradesh at Jabalpur High Court in the case
of Manish Sahu's case (supra), has
observed that act of unnatural sex by a man
with his own wife is not covered in the
definition of rape, in view of exception (ii)
of
the
amended definition
of
rape.
Therefore, the same will also not be an
offence u/s 377 IPC, if same is committed
with his own wife. Paragraph nos.17 and 18
of Manish Sahu's case (supra) is being
quoted as under:

"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 v. State of
Madhya Pradesh, Through Station House
Officer, 2023 SCC OnLine MP 3221."
5 All. Imran Khan @ Ashok Ratna Vs. State of U.P. & Anr.
639

17. This issue was again considered by
the Madhya Pradesh High Court in a Single
Judge Bench judgement in Shashank
Harsh's case (supra) wherein the single
judge bench of Madhya Pradesh High
Court observed that the unnatural sex
committed by a man with his own wife,
who is above 18 years is no more a rape as
per Section 375 IPC, therefore, same
cannot be an offence u/s 377 IPC as there is
repugnancy regarding the offence u/s 375
IPC as well as u/s 377 IPC then later
enactment, which was enacted in 2013 will
prevail over the definition of Section 377
IPC. Paragraph no.15 of the above
judgement is being quoted as under:

"15. In view of the aforesaid
discussions, this Court is of the considered
opinion that in the case at hand since the
respondent no. 2/wife was residing with her
husband during the subsistence of their
marriage and as per amended definition of
"rape" under Section 375 of IPC by which
insertion of penis in the mouth of a woman
has also been included in the definition of
"rape" and any sexual intercourse or act, by
the husband with his wife not below the age
of fifteen years is not a rape, therefore,
consent is immaterial In these circumstances
the allegations made in the FIR does not
constitute offence under Section 377 of IPC
against the petitioner no. 1. Accordingly, the
petitioner no. 1 is discharged from offence
under Section 377 of IPC."

18. The sole reasoning in the above
judgements of Madhya Pradesh High Court
declaring unnatural sex by a man with his
wife even against her consent not an
offence u/s 377 IPC, is that the same has
not been punishable as rape u/s 375 IPC.

19. This Court respectfully disagrees
with the above reasoning of Madhya
Pradesh High Court for the reason that a
wife may be above 18 years but as an
individual identity she has a choice for
sexual orientation that has to be protected,
and merely because she is a wife of a man,
her fundamental right not to give consent
against the unnatural sex cannot be taken
away. A woman despite being a wife also
has individual right to particular sexual
orientation and dignity.

20. Apex Court in the case of Navtej
Singh Johar (supra) has observed that
dignity is regarded as inseparable facet of
human personality and same is also an
important aspect of right to life under
Article 21 of the Constitution of India.
Paragraph no.139 of Navtej Singh Johar
(supra) is being quoted as under:

"139.The fundamental idea of
dignity is regarded as an inseparable facet
of human personality. Dignity has been
duly recognised as an important aspect of
the right to life under Article 21 of the
Constitution. In the international sphere,
the right to live with dignity had been
identified as a human right way back in
1948 with the introduction of the Universal
Declaration
of
Human
Rights.
The
constitutional courts of our country have
solemnly dealt with the task of assuring and
preserving the right to dignity of each and
every individual whenever the occasion
arises, for without the right to live with
dignity, all other fundamental rights may
not realise their complete meaning."

21. In the case of K. S. Puttaswamy
& Another v. Union Of India & Others
reported in 2017 (10) SCC 1, a nine-Judge
Bench of the Apex Court, very clearly
observed that privacy is concomitant of the
right of individual to exercise control over
their personality. It finds an origin in the
640 INDIAN LAW REPORTS ALLAHABAD SERIES
notion that there are certain rights which
are natural to or inherent in the human
being. They exist equally in the individual,
irrespective of class or strata, gender or
orientation. It was further observed that
privacy is a right which protect the inner
sphere of the individual from interference
from state and non-state actors and allows
individual to make autonomous life choices
and further observed that privacy is
constitutionally protected right on the part
of guarantee of life and personal liberty in
Article 21 of the Constitution of India.
Paragraph nos.42, 320, 322 and 323 of K.
S. Puttaswamy's case (supra) are being
quoted as under:

"42.Privacy is a concomitant of
the right of the individual to exercise
control over his or her personality. It finds
an origin in the notion that there are
certain rights which are natural to or
inherent in a human being. Natural rights
are
inalienable
because
they
are
inseparable from the human personality.
The human element in life is impossible to
conceive without the existence of natural
rights. In 1690,John Lockehad in
hisSecond
Treatise
of
Governmentobserved
that
the
lives,
liberties and estates of individuals are as a
matter of fundamental natural law, a
private preserve. The idea of a private
preserve was to create barriers from
outside interference. In 1765,William
Blackstonein hisCommentaries on the
Laws of Englandspoke of a "natural
liberty". There were, in his view, absolute
rights which were vested in the individual
by the immutable laws of nature. These
absolute rights were divided into rights of
personal security, personal liberty and
property. The right of personal security
involved
a
legal
and
uninterrupted
enjoyment of life, limbs, body, health and
reputation by an individual.

320.We
now
proceed
to
examine as to whether these components
meet the required parameters in the instant
case.

322.In
our
preceding
discussion, we have already pointed out
above that the Aadhaar Act serves the
legitimate State aim. That, in fact, provides
answer to this component as well. Some
additions to the said discussion is as
follows.

323.It is a matter of common
knowledge that various welfare schemes for
marginalised section of the society have
been floated by the successive Governments
from time to time in last few decades. These
include giving ration at reasonable cost
through ration shops (keeping in view
Right to Food), according certain benefits
to those who are below poverty line with
the
issuance
of
BPL
cards,
LPG
connections and LPG cylinders at minimal
costs, old age and other kinds of pensions
to
deserving
persons,
scholarships,
employment to unemployed under the
Mahatma
Gandhi
National
Rural
Employment
Guarantee
Act,
2005
(Mgnrega)
Scheme.
There
is
an
emergence of socio-economic rights, not
only in India but in many other countries
world-wide. There is, thus, recognisation
of civil and political rights on the one
hand and emergence of socio-economic
rights on the other hand. The boundaries
between civil and political rights review
as well as socio-economic rights review
are
rapidly
crumbling.
This
rights
jurisprudence created in India is a telling
example."
5 All. Imran Khan @ Ashok Ratna Vs. State of U.P. & Anr.
641

22. Apex Court in the case of Navtej
Singh Johar (supra) also considered
natural
and
unnatural
intercourse
in
paragraph no.418 and same is being quoted
as under:

"418. If it is difficult to locate any
intelligible
differentia
between
indeterminate terms such as ?natural? and
?unnatural?,
then
it
is
even
more
problematic to say that a classification
between
individuals
who
supposedly
engage in ?natural? intercourse and those
who engage in ?carnal intercourse against
the order of nature? can be legally valid."

23. The Apex Court in the case of
Navtej Singh Johar (supra) considered
the amendment in the definition of rape u/s
375 IPC in the year 2013. In that
judgement,
the
Apex
Court
was
considering the validity of Section 377 IPC
so far as the consensual carnal intercourse
with
a
person
of
the
LGBTQIA+
community is concerned and, after a
detailed discussion, observed that though
carnal intercourse like oral sex or anal sex
may be unnatural for a major part of the
society, but still, it is a natural orientation
of minority group of the LGBTQIA+
community. Therefore, same cannot be an
offence if intercourse is wilful, but further
observed that if the carnal intercourse is
non-consensual, then same is still an
offence u/s 377 IPC.

24. The Apex Court also observed that
Section 377 IPC, unlike Section 375 IPC, is
a gender neutral provision as it uses the
word 'whoever' and finally, the Apex Court
observed that punishment for consensual
sexual activity between two adults, be them
a homosexual, heterosexual and lesbian,
cannot be regarded as constitutional.
However, if any act of carnal intercourse
between the individuals is done without the
consent of anyone of them, then the same
would
be
punishable
u/s
377
IPC.
Paragraph no.267 of judgement of Navtej
Singh Johar (supra) is being quoted as
under:

"267.Thus analysed, Section
377 IPC, so far as it penalises any
consensual sexual activity between two
adults, be it homosexuals (man and a man),
heterosexuals (man and a woman) and
lesbians (woman and a woman), cannot be
regarded as constitutional. However, if
anyone, by which we mean both a man and
a woman, engages in any kind of sexual
activity with an animal, the said aspect of
Section 377 IPC is constitutional and it
shall remain a penal offence under Section
377 IPC. Any act of the description
covered under Section 377 IPC done
between the individuals without the
consent of any one of them would invite
penal liability under Section 377 IPC."

25. Given the above analysis, it is
clear that carnal sex, other than penilevaginal intercourse is not a natural
orientation of sex for the majority of
women, therefore the same cannot be
done by the husband, even with his wife
without her consent. Therefore, this
court
holds
that
unnatural
sexual
intercourse by a man with his own wife
without her consent, even if she is above
18 years, would be punishable u/s 377
IPC though that may not be rape as per
Section 375 IPC.

26. In view of the above discussion,
the submission of learned counsel for the
applicant that no offence u/s 377 IPC is
made
out
against
the
applicant
is
misconceived
because
the
unnatural
intercourse committed by the applicant
642 INDIAN LAW REPORTS ALLAHABAD SERIES
upon the opposite party no.2 was against
her will.

27. From the perusal of the statement of
opposite party no.2 recorded u/s 161 and 164
Cr.P.C., there is specific allegation of cruelty
and also the harassment against the husband for
demand of dowry, as well as committing
unnatural carnal sex upon his wife against her
wishes. Therefore, the contention of learned
counsel for the applicant that no offence u/s 498A
and 377 IPC and Section 3/4 D.P. Act, is made
out, is misconceived. As far as the other
contention of the learned counsel for the applicant
that opposite party no.2 was aware about the
earlier marriage of the applicant is concerned, the
same is not relevant for the present controversy
and also being disputed question of fact can be
decided during trial, but cannot be a ground to
quash the impugned proceeding.

28. So far as the submission of learned
counsel for the applicant that there is delay in
lodging the FIR is also misconceived because
from the perusal of FIR, as well as the
statements, it is clear that there was a
continuous harassment of opposite party no.2
on the part of the applicant. Therefore, the
judgement of Shivendra Pratap Singh
Thakur's case (supra) relied upon by learned
counsel for the applicant is not applicable in
the present case.

29. Another submission of learned
counsel for the applicant is that as the opposite
party no.2 has refused to conduct her medical
examination,
therefore,
the
impugned
proceeding deserves to be quashed is also
misconceived, as unnatural intercourse was
committed by the applicant with the opposite
party no.2 against her wishes, and after a few
days, an FIR was lodged. There is other
material in the case diary, which substantiates
the allegation of the opposite party no.2.
Therefore, even if medical examination of
opposite party no.2 was not conducted that
cannot be a ground to quash the impugned
proceeding.

30. The submission of learned counsel for
the applicant that the independent witness did not
support the version of opposite party no.2 as
mentioned in the FIR and there is no specific
demand of dowry in the statement of opposite
party no.2 recorded u/s 161 Cr.P.C. and 164
Cr.P.C. is also misconceived because the
Apex Court in the case of Aluri Venkata
Ramana Vs. Aluri Thirupathi Rao and
Others, SLP (Criminal) No.9243 of 2024 has
observed that to attract the offence u/s 498A
IPC, specific demand of dowry is not
necessary, and cruelty committed by the
husband is itself sufficient to attract the
ingredients of Section-498A IPC. Even
otherwise from the perusal of the statements
of Section 161 Cr.P.C. and 164 Cr.P.C.,
offence mentioned in chargesheet are made
out. Therefore, judgement of State of
Himachal Pradesh's case (supra) is not
applicable in the present case.

31. In view of the above, this court is of
the view that no ground for quashing is made
out, therefore, present application is rejected.

32. However, the applicant is at liberty to
apply for bail before the court below.
---------
(2025) 5 ILRA 642
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2025

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Application U/S 528 BNSS No. 14125 of 2025

Rajkumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties