appln-161-2021.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.161 OF 2021 1. Saurebh s/o Sham Chobe 2. Sham s/o Chandmal Chobe 3. Vidya w/o Sham Chobe .. Applicants Versus 1. The State of Maharashtra 2. Aishwarya Saurebh Chobe .. Respondents … Mr. S. S. Varma, Advocate h/f Mr. S. S. Ladda, Advocate for applicants. Mr. A. M. Phule, APP for respondent No.1/State. Mr. N. L. Choudhari, Advocate for respondent No.2. ... CORAM : SMT. VIBHA KANKANWADI & ROHIT W. JOSHI, JJ. DATE : 08 JANUARY 2025 ORDER (Per Smt. Vibha Kankanwadi, J.) :- . Present application seeks quashment of proceedings in R.C.C. No.299 of 2020 pending before the learned Judicial Magistrate First Class, Dhule arising out of the F.I.R. bearing Crime No.17 of 2020 registered with Chalisgaon Road Police Station, Dhule for the offences punishable under Sections 377, 498-A, 323, 326, 504, 506, 406 read with Section 34 of Indian Penal Code. [1] 2025:BHC-AUG:1972-DB appln-161-2021.odt 2. Heard learned Advocate Mr. S. S. Varma holding for learned Advocate Mr. S. S. Ladda for the applicants, learned APP Mr. A. M. Phule for respondent No.1/State and learned Advocate Mr. N. L. Choudhari for respondent No.2. 3. It is not in dispute that respondent No.2 got married to applicant No.1 on 10.03.2015. Applicant No.2 and applicant No.3 are the parents of applicant No.1 and all the applicants are residing together at Pune. 4. The learned Advocate for the applicants has taken us through the FIR, medical report and the statements of witnesses. He has also tried to submit that on insistence of respondent No.2, there was an attempt to live separately and for that purpose, he had entered into leave and license agreement on 13.12.2019 with a lady. Copy of which has been given. In fact, due to the behaviour of respondent No.2, applicant No.1 used to be under stress and he had consumed more tablets than recommended due to which he was required to be admitted in the hospital. A complaint application was also given by the applicant with Wakad Police Station. In his application he has given the harassment given to him by the wife. Further, even applicant Nos.2 and 3 [2] appln-161-2021.odt had also given complaint application to Sangvi Police Station, District Pune wherein they have stated specifically that applicant No.1 and respondent No.2 are residing separately from them. Now, respondent No.2 unnecessarily by concocting story is contending that she has been subjected to cruelty. Even the allegations regarding unnatural offence have been made against the husband. The learned Advocate appearing for the petitioner relies on the Full Bench decision of the Hon’ble Supreme Court in Navtej Singh Johar and others Vs. Union of India and others, [(2018) 10 SCC 1], wherein it is observed that Section 377 of Indian Penal Code does not define unnatural offence, but makes carnal intercourse as an offence against the order of nature. Section 377 criminalises even voluntary carnal intercourse not only between homosexuals but also between heterosexuals. It is further observed that Section 377, so far as it criminalises carnal intercourse between heterosexuals is legally unsustainable in its present form for the simple reason that carnal intercourse between a man and a woman with the willful and informed consent of the woman does not amount to rape and is not penal. Here, the relationship between applicant No.1 and respondent No.2 is husband and wife and therefore, whatever allegations [3] appln-161-2021.odt have been made will not come within purview of Section 377 of Indian Penal Code. He further relies on the decision of the learned Single Judge of the High Court of Uttarakhand at Nainital in Dr. Kirti Bhushan Mishra Vs. State of Uttarakhand and another, [Criminal Misc. Application No.2697 of 2019 decided on 19.07.2024], wherein it is stated that the act alleged also falls within Section 375 IPC and by operation of Exception 2 to it, a husband cannot be held guilty under Section 375 IPC for such an act. In such a situation the provisions of Section 377 IPC cannot be invoked against the husband. He, therefore, prays for quashment of the entire proceedings against the applicants. 5. Per contra, learned APP as well as learned Advocate for respondent No.2/informant submit that all the ingredients of the offences are transpiring prima facie from the contents of the FIR as well as the statements of the witnesses. The cruelty to the petitioner was on account of demand of money. They were demanding amount of Rs.10,00,000/- for expansion of the business. She has stated that her father had spent more than Rs.25,00,000/- on the marriage and had given gifts in gold and silver, still she was insulted that the dowry is not given as per the honour. Amount of Rs.3,00,000/- was given on the savings [4] appln-161-2021.odt account of the father-in-law by her father on 05.12.2015 through R.T.G.S. Documentary evidence to that effect is produced. Even after birth of son, the acts of cruelty had not subsided and the husband was then insisting that she should give divorce. Threat was given that otherwise he would commit rape upon her sister and would kill herself and the son. She was beaten mercilessly on 31.01.2020 and then the husband had consumed extra does of medicines. Her signatures have been forcibly obtained on some blank papers and burn marks were given with the help of iron rod on her. She was then driven out of the house on 09.02.2020. There is substantial evidence against the accused persons and, therefore, the application need not be considered under the inherent powers. 6. At the outset, we would like to say that taking into consideration the contents of the FIR and the charge-sheet, we are of the opinion that there is prima facie evidence for proceeding under Sections 498-A, 323, 326, 504, 506, 406 read with Section 34 of Indian Penal Code. The medical evidence is also supporting prima facie. The only contention is in respect of Section 377 of Indian Penal Code. Here, it is to be noted that it is not even necessary to go into the decisions those have been cited [5] appln-161-2021.odt by learned Advocate for the petitioner. In fact, in Navtej Singh Johar and others (Supra), the Hon’ble Supreme Court was considering the constitutionality of Section 377 of Indian Penal Code from the point of view of the earlier decision in respect of LGBT. It has been concluded that in so far as Section 377 of Indian Penal Code criminalises consensual sexual acts between adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of article 14, 15, 19 and 21 of the Constitution, however, it was clarified that such consent must be free consent, which is completely voluntary in nature and devoid of any duress or coercion. Therefore, the said Section is still in the statute book and we need not take the similar view as is taken by the learned Single Bench of the High Court of Uttarakhand at Nainital for the simple reason that if we peruse the contents of the FIR, it can be seen that there is only words used “vuSlfxZd ‘kkjhjhd laca/k” (unnatural offence). Section 377 of Indian Penal Code, as aforesaid, criminalises carnal intercourse against the order of nature with any man or woman etc., but here the informant has not even given the acts or details of the said unnatural offence. She does not even say that it was carnal intercourse against the order of nature. Therefore, only on the [6] appln-161-2021.odt basis of the term used “unnatural offence” ingredients of Section 377 of Indian Penal Code will not get attracted and, therefore, to that extent, the application deserves to be partly allowed. Hence, the following order :- ORDER I) Criminal Application stands partly allowed. II) The proceedings in R.C.C. No.299 of 2020 pending before the learned Judicial Magistrate First Class, Dhule arising out of F.I.R. No.17 of 2020 registered with Chalisgaon Road Police Station, Dhule for the offences punishable under Sections 377, 498-A, 323, 326, 504, 506, 406 read with Section 34 of Indian Penal Code, stands quashed and set aside to the extent of Section 377 of Indian Penal Code only. III) We clarify that the matter can proceed further for other offences. [ ROHIT W. JOSHI ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGE scm [7]