Citation: Criminal Misc. Application No. 2697 of 2019, High Court of Uttarakhand at Nainital
Bench: Justice Ravindra Maithani

• Parties Involved:
• Petitioner: Dr. Kirti Bhushan Mishra
• Respondents: State of Uttarakhand and another
• Advocates:
• For the Petitioner: Mr. Aditya Singh
• For the State (Respondent No. 1): Mr. Saurabh Pandey
• For Respondent No. 2: Mr. Navneet Kaushik

Brief Facts:
The petitioner, Dr. Kirti Bhushan Mishra, faced allegations from his wife, who claimed that he repeatedly engaged in anal intercourse with her without her consent, leading to severe physical injuries and requiring medical treatment. The wife also alleged that the petitioner had shown explicit content to their son, which was perceived as sexual harassment. The trial court had issued a summons to the petitioner for offences under Sections 377 IPC (unnatural offences) and Sections 11 and 12 of the Protection of Children from Sexual Offences (POCSO) Act.

Issues:

• Whether a husband can be held liable for rape under Section 375 IPC for engaging in sexual acts with his wife that fall under Exception 2 of the IPC.
• Whether Section 377 IPC can be applied to a husband for engaging in 'unnatural sex' with his wife.
• Whether the petitioner could be held liable for offences under the POCSO Act regarding alleged harassment of their son.

Statutes Involved

• The Indian Penal Code (IPC): Section 375, Section 377
• The Protection of Children from Sexual Offences (POCSO) Act, 2012: Sections 11 and 12
• The Hindu Marriage Act, 1955: Section 13(2)(ii)

Judgment:
Justice Ravindra Maithani, in his judgment, ruled that:
Section 375 IPC: Exception 2 to Section 375 IPC stipulates that a husband cannot be found guilty of rape for engaging in sexual acts with his wife, provided such acts fall within the ambit of consent implied by marriage.

Section 377 IPC: Following the Supreme Court's judgment in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, which decriminalized consensual homosexual acts, the Court observed that if an act is not considered rape under Section 375 IPC due to the implied consent of marriage, it cannot be prosecuted under Section 377 IPC. The Court concluded that Section 377 IPC does not apply to consensual sexual acts between married couples.

POCSO Act: The Court upheld the summons for offences under Sections 11 and 12 of the POCSO Act, noting that allegations concerning the petitioner's alleged actions towards his son were sufficiently grave to warrant further judicial scrutiny.

Conclusion:
The Uttarakhand High Court clarified that the provisions of Section 377 IPC are inapplicable to a married couple if the sexual acts involved do not constitute rape under Section 375 IPC. The ruling emphasized the legal recognition of marital consent and clarified the boundaries of criminal liability for sexual acts between spouses.

However, the Court maintained the summons related to the alleged offences under the POCSO Act, reflecting the seriousness of the allegations concerning the petitioner's son. This judgment underscores the evolving legal interpretations surrounding marital consent and the limits of sexual offence laws in India.