HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 1692/2023 Mukesh Kumar Sharma Son of Shri Shyam Sundar Sharma, Resident of Ward No. 05, Shyonathpura Nangli Gujran, District Jhunjhunu (Raj). At Present Resident Of Behind Bagiya Hotel, Nawalgarh Bypass, Sikar (Raj). ----Petitioner Versus 1. State of Rajasthan, through P.P. 2. Victim ----Respondents For Petitioner(s) : Mr.Ripu Daman Singh Naruka For Respondent(s) : Mr.Gaurav Gupta, Asst. GA. JUSTICE ANOOP KUMAR DHAND Order 27/05/2026 1. The instant misc. petition is listed before this Court in pursuance of the directions issued by the Hon’ble Apex Court in the case of Vijay Kumar and Ors. Vs. State of Rajasthan (Petition for Special Leave to Appeal (Crl.) No. 773/2026, decided on 15.01.2026), wherein the Hon’ble Apex Court observed that in various matters, interim orders have been passed in criminal revision petitions and petitions filed under Section 482 Cr.P.C., as a result of which trial relating to serious offences such as murder, rape, dacoity, dowry death, etc., could not proceed and remained stalled/held up due to the passage of considerable time. 2. Directions have been issued to this Court and other High Courts to take up such like matters which are pending since long, (2 of 10) [CRLMP-1692/2023] on priority and decide the same expeditiously without deferring the hearings to subsequent dates. 3. By way of filing the instant criminal misc. petition, a prayer has been made to quash the impugned F.I.R. No.493/2022, registered with Police Station Udhyog Nagar (Sikar), District Sikar for the offences punishable under Sections 323, 344, 327, 354, 376(2)(n), 370 & 370A of IPC. 4. Learned counsel for the petitioner submits that the marriage of the petitioner was solemnised with the complainant-respondent on 03.12.2019. Thereafter, the complainant resided with the petitioner for some time, however, later she developed extra- marital affair with one Vinod Kumar Sharma and left her matrimonial home on 03.03.2020 and she took the gold and silver ornament from the petitioner’s house along-with her paramour Vinod Kumar Sharma. Counsel submits that for the aforesaid incident dated 03.03.2020, the F.I.R. No.513/2020 was registered by the petitioner on 25.10.2020 with Police Station Udhyog Nagar, District Sikar for the offences punishable under Sections 420 & 406 of IPC. Counsel submits that the aforesaid matter was thoroughly investigated by the Investigating Agency and the complainant-respondent was charge-sheeted along-with co- accused Kuldeep Sharma. Counsel further submits that on 02.07.2020, the complainant-respondent No.2 along-with her paramour Vinod Kumar Sharma submitted S.B. Criminal Misc. (Petition) No.1510/2020 before a Co-ordinate Bench of this Court at Prinicpal Seat at Jodhpur seeking police protection against the private persons, i.e., Hoshiyar Singh, Supyar & Manisha on the pretext that they are feeling threat to their lives at their hands. (3 of 10) [CRLMP-1692/2023] Counsel submits that the aforesaid petition submitted by the complainant along-with Vinod Kumar Sharma was disposed of by the Co-ordinate Bench of this Court at Principal Seat at Jodhpur, vide order dated 02.07.2020 granting them liberty to submit appropriate representation before the concerned Superintendent of Police and Station House Officer and the Police Authorities were directed to decide the said representation for redressal of grievances of the complainant and the said Vinod Kumar Sharma. 5. Counsel submits that in counter-blast to the aforesaid F.I.R. No.513/2020 registered by the petitioner against the complainant, she has lodged the impugned F.I.R., after a delay of more than two years, against the petitioner for the offences punishable under Sections 323, 344, 327, 354, 376(2)(n), 370 & 370A IPC based on false and fabricated allegations. Counsel submits that the registration of the impugned F.I.R. under such circumstance, tantamounts to abuse of process of law, hence, the impugned F.I.R. is liable to be quashed. 6. Learned Public Prosecutor opposed the prayer and submitted that after thorough investigation in the present matter, prima facie case has been found to be proved against the petitioner under Sections 323, 344, 327, 376(2)(n), 370 & 370(A) IPC. Hence, under these circumstances, interference of this Court is not warranted and the instant petition is liable to be rejected. 7. Heard and considered the submissions made at the Bar and perused the material available on record. 8. No one has put in appearance on behalf of the complainant- respondent in spite of service. (4 of 10) [CRLMP-1692/2023] 9. This fact is not in dispute that the marriage of the complainant-respondent was solemnized with the petitioner on 03.12.2019. Under these circumstances, the complainant- respondent is the legally wedded wife of the petitioner. By no stretch of imagination, it can be believed that a husband, such as the petitioner, would commit rape upon his legally wedded wife, i.e., the victim. 10. It is worthy here to quote the definition of "rape" as prescribed under Section 375 of IPC, which 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 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." (5 of 10) [CRLMP-1692/2023] 11. The definition of "rape" was later amended by the Criminal Law Amendment Act, 2013 (Act No.13 of 2013) and the amended definition of "rape", as defined under Section 375 of IPC reads as under:- "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. (6 of 10) [CRLMP-1692/2023] Seventhly. When she is unable to communicate consent. 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 nonverbal 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." 12. Upon perusal of the definition of the term ‘Rape’ under Section 375 IPC, it is evident that the said offence has been expansively defined under the IPC. As per this expansive definition, sexual intercourse by a man with his own wife would not constitute the offence of rape, if she is above 15 years of age. The Hon’ble Apex Court in the case of Navtej Singh Johar Vs. Union of India reported in (2018) 1 SCC 791 has held that in the light of Exception 2 of Section 375 IPC, sexual intercourse or sexual acts by a husband with his wife (not being a minor) do not constitute rape, thereby rendering the aspect of consent within marriage legally immaterial for the purpose of prosecuting such acts as rape. 13. In the case of Kuldeep Singh Vs. State of Punjab & Ors. while deciding SLP (Civil) No.13277 of 2023 vide judgment dated 31.01.2025, the Hon’ble Apex Court has dealt with the identical issue in Para Nos.6 to 16, which read as under :- “6. In the meanwhile, the Respondent No. 3 on 01.09.2022 recorded a statement (7 of 10) [CRLMP-1692/2023] under section 164 of the Cr.P.C, with the Ld. JMFC raising allegations of rape against the appellant and also alleged that the marriage has been solemnised forcibly by the appellant. It was further alleged that mother and brother of the appellant had also assisted the appellant in the commission of said crimes. Accordingly, the names of brother and mother of the appellant were also added to the FIR along with addition of Sections 363, 120B and 376 of IPC. 7. Accordingly, the Special Investigation Team3 consisting of Superintendent of Police, Hoshiarpur, Deputy Superintendent of Police-Crime against Women and Children, Hoshiarpur and Deputy Superintendent of Police-Sub Division City Hoshiarpur had conducted investigation in the matter and filed an inquiry report. In furtherance of the inquiry report, the police filed the challan dated 01.07.2023 under Section 173 of Cr.P.C. which stated that from the investigation conducted by SIT, allegations levelled by the victim against Kuldeep Singh regarding kidnapping and pressurizing her formarriage have not been proved as it was found that the victim has solemnised the marriage with the appellant with her own consent. It was also found that no role can be attributed to the mother or brother of the appellant and hence they were completely exonerated as no evidence could be collected against them. As such, Section 366 of IPC was deleted and only Sections 376 and 506 of IPC survived against the appellant as per the chargesheet. 8. Thereafter, the appellant had preferred CRM-M-No. 41161 of 2023 dated 18.08.2023 before the High Court seeking quashing of FIR No. 148 of 2022 and all consequential proceedings. The High Court, vide the impugned order, had dismissed the appellant’s petition while holding that the petition lacked any merit and the matter (8 of 10) [CRLMP-1692/2023] required evaluation of evidence and adjudication by the Trial Court. 9. Aggrieved by the said order, the appellant is before us. 10. Before moving forward, we find it relevant to note here that neither Respondent No. 2, i.e. the complainant nor Respondent No. 3, i.e. the victim has entered appearance before this Court despite sufficient service of notice. 11. We have heard the learned counsel for the accused appellant and Respondent No. 1-State and also perused the material on record. 12. It has been submitted by the appellant that he is the legally wedded husband of Respondent No. 3 and therefore no offence under Section 376 of IPC is made out against him since he is covered under Exception No. 2 appended to Section 375 of IPC. The appellant has also brought to our notice the written statement dated 01.08.2023 filed by the Respondent No. 3 in the matter of restitution of conjugal rights and highlighted that she has nowhere made any allegations pertaining to rape against the appellant in the said written statement. 13. It would be relevant to refer to Annexure P-3 which is an order passed by Ld. Single Judge of the Punjab & Haryana High Court in CRWP No. 5913 of 2022 on 21.06.2022 providing protection to the petitioners therein being the appellant and Respondent No. 3. The said petition had been jointly filed by the appellant and Respondent No. 3 seeking protection from the family members of the Respondent No. 3 as she had married the appellant of her own free will and volition against the wishes of her family members. Moreover, it may also be noted that in the reply filed by the Respondent No. 3 to the appellant’s petition (9 of 10) [CRLMP-1692/2023] for restitution of conjugal rights, she has not made any allegation of rape or marriage by force against the appellant. Further, the Respondent No. 3 or for that matter Respondent No. 2 despite service of notice, have not come forward to dispute or deny the abovefacts. 14. Importantly, it must be noted that the case as of now, after the filing of chargesheet, survives only to the extent of allegations under Sections 376 and 506 of IPC as it was established during the inquiry that the victim had solemnised the marriage with the appellant out of her own free will. 15. In this regard, it has been rightly pointed out by the appellant that as per Exception 2 under Section 375 of IPC, sexual intercourse by a man with his own wife cannot be termed as rape and, hence, a charge under Section 376 of IPC cannot be sustained against the appellant. Further, the conduct of the Respondent No. 2 and 3 in failing to enter appearance despite sufficient notice is reflective of the fact that it is a dead case where no purpose shall be served in continuing the criminal proceedings alleging charges of rape against the appellant. 16. As such, given the facts and circumstances of the case, it is evident that no prima facie case constituting any offence is made out against the appellant and he is entitled to the relief sought.” Hence, it is clear that if the accused is legally wedded husband of the victim, the offence of rape punishable under Section 376 IPC is not made out as he is covered under Exception 2 appended to Section 375 IPC. 14. Hence, under these circumstances, the impugned F.I.R. qua the offence under Section 376 (2)(n) IPC is not tenable and is (10 of 10) [CRLMP-1692/2023] liable to be and is hereby quashed. So far as the other allegations are concerned, this Court is not going to conduct roving and fishing enquiry to find out the truth behind the allegations. 15. Considering the arguments put forward by learned counsel for the petitioner, this Court deems it just and proper to dispose of the instant petition, granting liberty to the petitioner to submit a detailed comprehensive representation along-with the relevant documents in support of his contention before the Investigating Officer, who shall consider the same in a fair and unbiased manner and thereafter, submit the conclusion report under Section 173 Cr.P.C. before the concerned Court. 16. Till submission of such conclusion report under Section 173 Cr.P.C., the interim order passed by this Court shall remain in currency. (ANOOP KUMAR DHAND),J Aayush Sharma/7