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The Chhattisgarh High Court has held that in the absence of any medical evidence or any other material on record, proceedings under Section 377 of Indian Penal Code, 1860 against the husband is nothing but an abuse of process.

The bench of Justice Narendra Kumar Vyas was hearing a batch of petitions challenging registration of FIRs under various Sections of IPC including Section 377 (unnatural offences) lodged by wives against their husbands and subsequent submission of charge-sheets.

The Court prima facie opined that as there was no material on record showing the commission of alleged offence by the petitioner-husbands, therefore, continuation of criminal proceedings so far as Section 377 IPC was nothing but abuse of process.

Accordingly, the Court held that the trial may continue for other alleged offences but no coercive steps for commission of offence under Section 377 be taken against the husbands.

In support of their pleas before the court, the petitioners had argued that as there could be no witness to such an offence for it involves relation between a husband and wife and no material on record was put by the prosecution in support of the allegation, therefore, Section 161 (examination of witnesses by police) or Section 164 (recording of confession by Magistrate only) and Section 164-A Code of Criminal Procedure (CrPC) (medical exam of rape victim) could not provide any safeguard to the petitioners.

The petitioners had submitted that as per Section 164-A of CrPC, medical examination of victim of rape is necessary but in the case of offence under Section 377 IPC no such provisions have been inserted in CrPC therefore, some prima facie evidence should have been brought on record by the complaint or the prosecution for prima facie establishing the offence under Section 377.

The petitioners also argued that as per Section 375 of the IPC, if a man has committed sexual intercourse with his wife, it will not fall within the ambit of rape under Section 375 of IPC if the age of the wife is over 18 years, therefore, if sexual intercourse with wife does not fall within rape then any act committed by husband as enumerated in Section 377 will also not fall within the ambit of unnatural offences.

They had averred that for proper functioning of marital life no consent is required for sexual intercourse, therefore, Section 375(2) will come to the rescue of the petitioners in the allegations of offence under Section 377.

The Petitioners had also submitted that there is no requirement of law to have consent for doing sexual intercourse with wife, as "otherwise, the whole society will be adversely affected," and "family affairs will be in a difficult proposition."

Significantly, the petitioners had put on record that the complainants' medical examination specifically provided that no definite opinion could be given about anal sex and no material was produced by the investigating authority in its final report with regard to commission of offence under Section 377 IPC.

Therefore, stressing that for prima-facie establishing the offence under Section 377 IPC further materials should be investigated by the investigating authority, the petitioners had contended that registration of offence under  Section 377 against them was an abuse of process of law which was liable to be quashed by the Court.

On the contrary, the Advocate General (AG) on behalf of State referring to section 154 of CrPC had submitted that it is mandatory on the part of the police to register FIR on the basis of a complaint made by the victim.

Relying upon the Apex Court's ruling in State of Kerala vs. Kurissum Moottil Antony (2007), the AG had submitted that medical examination is not necessary for the registration of FIR. 

Accordingly, he had argued that on the basis of the statement of the victim the offence had been made out in the FIRs which at the instant juncture could not be quashed by the High Court.

However, taking note of the submissions of both the parties, the Court held that so far as Section 377 IPC was concerned, in the absence of any material on record backing up the allegation, the lodging of FIR was nothing, but an abuse of process.

Cause Title: Kailash Sonkar and Ors. v. State Of Chhattisgarh and two other petitions