[2026:RJ-JP:16144] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 7945/2022 Kamlesh Saini S/o Shri Dayal Saini, Aged About 32 Years, R/o Ward No. 02, Nayakwala, Tijara, District Alwar (Raj). ----Petitioner Versus 1. State of Rajasthan, Through P.P. 2. Nando S/o Ramhet, R/o Village Naunera, Kaman, Jurhera, District Bharatpur (Raj),. ----Respondents For Petitioner(s) : Mr. Vikram Singh Panwar for Mr. Martand Pratap Singh For Respondent(s) : Mr. Jitendra Singh Rathore, PP with Ms. Neha Goyal JUSTICE ANOOP KUMAR DHAND Order 17/04/2026 1. The instant misc. petition is listed before this Court in pur- suance 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 revi- sion petitions and petitions filed under Section 482 Cr.P.C., as a re- sult 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, [2026:RJ-JP:16144] (2 of 9) [CRLMP-7945/2022] on priority and decide the same expeditiously without deferring the hearings to subsequent dates. 3. By way of filing the instant petition, a challenge has been made to the impugned FIR No. 251/2022, registered with Police Station Jurhera, District Bharatpur for the offences punishable un- der Sections 363, 366 & 376-D IPC and a prayer has been made to quash the entire proceedings arising out of the same. 4. Learned counsel for the petitioner submits that the pros- ecutrix is a major lady aged 20 years. She has solemnized regis- tered marriage with the petitioner on 15.06.2022. He further sub- mits that as per the allegations levelled by the mother of the pros- ecutrix in the impugned FIR, the offence of rape has been commit- ted upon the prosecutrix. Counsel further submits that when the statements of the prosecutrix were recorded under Section 200 Cr.P.C. before the Court of Civil Judge & Judicial Magistrate, Bhi- wadi Mukam, Bhiwadi, she has admitted the factum of her mar- riage with the petitioner. She has submitted that her family mem- bers were not happy with their marriage and they threatened them with dire consequences. Counsel further submits that look- ing to the statements of the prosecutrix, who is the legally wed- ded wife of the petitioner, no alleged offence is made out and the impugned FIR is liable to be quashed. 5. Per contra, learned Public Prosecutor oppose the prayer. 6. Heard and considered the submissions made at the Bar and perused the material available on record. 7. The main allegation levelled by the mother of the pros- ecutrix, against the petitioner in the impugned FIR pertains to the offence of ‘Rape’ alleged to have been committed by the petitioner [2026:RJ-JP:16144] (3 of 9) [CRLMP-7945/2022] upon her daughter. The offence of rape is punishable under Sec- tion 376 IPC and the same has been defined under Section 375 IPC. 8. It is worthy here to quote the definition of "rape" as pre- scribed 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 fall- ing 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 giv- ing 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 under- stand 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.-Penetra- tion 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." 9. 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:- [2026:RJ-JP:16144] (4 of 9) [CRLMP-7945/2022] "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 ure- thra 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. 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 mar- ried. 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 unwhole- some substance, she is unable to understand the na- ture and consequences of that to which she gives consent. Sixthly.With or without her consent, when she is un- der eighteen years of age. Seventhly.When she is unable to communicate con- sent. Explanation 1.For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.Consent means an unequivocal volun- tary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, [2026:RJ-JP:16144] (5 of 9) [CRLMP-7945/2022] communicates willingness to participate in the spe- cific sexual act: Provided that a woman who does not physically re- sist 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 fif- teen years of age, is not rape." 10. Upon perusal of the definition of the term ‘Rape’ under Sec- tion 375 IPC, it is evident that the said offence has been expan- sively defined under the IPC. As per this expansive definition, sex- ual 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 In- dia 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. 11. In the case of Kuldeep Singh Vs. State of Punjab & Ors. reported in 2025 SCC OnLine SC 211, 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 un- der 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 appel- lant. It was further alleged that mother and brother of the appellant had also assisted [2026:RJ-JP:16144] (6 of 9) [CRLMP-7945/2022] 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 Po- lice, Hoshiarpur, Deputy Superintendent of Police-Crime against Women and Children, Hoshiarpur and Deputy Superintendent of Police-Sub Division City Hoshiarpur had con- ducted investigation in the matter and filed an inquiry report. In furtherance of the in- quiry report, the police filed the challan dated 01.07.2023 under Section 173 of Cr.P.C. which stated that from the investiga- tion conducted by SIT, allegations levelled by the victim against Kuldeep Singh regard- ing kidnapping and pressurizing her formar- riage 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 con- sequential proceedings. The High Court, videthe impugned order, had dismissed the appellant’s petition while holding that the petition lacked any merit and the matter re- quired evaluation of evidence and adjudica- tion by the Trial Court. 9. Aggrieved by the said order, the appellant is before us. [2026:RJ-JP:16144] (7 of 9) [CRLMP-7945/2022] 10. Before moving forward, we find it rele- vant to note here that neither Respondent No. 2, i.e. the complainant nor Respondent No. 3, i.e. the victim has entered appear- ance before this Court despite sufficient ser- vice of notice. 11. We have heard the learned counsel for the accusedappellant 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 Re- spondent No. 3 and therefore no offence un- der Section 376 of IPC is made out against him since he is covered under Exception No. 2 appended to Section 375 of IPC. The ap- pellant has also brought to our notice the written statement dated 01.08.2023 filed by the Respondent No. 3 in the matter of resti- tution of conjugal rights and highlighted that she has nowhere made any allegations per- taining to rape against the appellant in the said written statement. 13. It would be relevant to refer to Annex- ure P-3 which is an order passed by Ld. Sin- gle Judge of the Punjab & Haryana High Court in CRWP No. 5913 of 2022 on 21.06.2022 providing protection to the peti- tioners therein being the appellant and Re- spondent 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 Respon- dent No. 3 to the appellant’s petition for restitution of conjugal rights, she has not made any allegation of rape or marriage by force against the appellant. Further, the Re- spondent No. 3 or for that matter Respon- dent No. 2 despite service of notice, have [2026:RJ-JP:16144] (8 of 9) [CRLMP-7945/2022] 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 Ex- ception 2 under Section 375 of IPC, sexual intercourse by a man with his own wife can- not be termed as rape and, hence, a charge under Section 376 of IPC cannot be sus- tained 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 alleg- ing charges of rape against the appellant. 16. As such, given the facts and circum- stances of the case, it is evident that no prima facie case constituting any offence is made out against the appellant and he is en- titled to the relief sought.” Hence, it is clear that if the accused is legally wedded hus- band of the victim, the offence of rape punishable under Section 376 IPC is not made out as he is covered under Exception 2 ap- pended to Section 375 IPC. Hence, under these circumstances, no good person can believe that the offence of rape can be commit- ted by the husband upon her legally wedded wife, who is a major lady, in terms of Exception 2 of Section 375 IPC. 12. Perusal of the statements of the prosecutrix ‘S’, recorded un- der Section 200 Cr.P.C. before the Court of Civil Judge & Judicial Magistrate, Bhiwadi Mukam, Bhiwadi indicates that her registered [2026:RJ-JP:16144] (9 of 9) [CRLMP-7945/2022] marriage was solemnized with the petitioner on 15.06.2022 and she admits the factum of marriage with the petitioner. 13. Considering the overall facts and circumstances of the case and looking to the fact that the prosecutrix is the legally wedded wife of the petitioner, continuation of the impugned proceedings arising out of the impugned FIR amounts to abuse of the process of law and is liable to be and is hereby quashed and set aside. 14. Stay application and all pending application(s), if any, also stand disposed of. (ANOOP KUMAR DHAND),J Shivam/14