Legal opinion - please help
bbratnam
(Querist) 15 May 2014
This query is : Resolved
1. The Marriage of a woman was performed legally with a Constable of Border Security Force with out any dowry. Immediately after the marriage the marriage was consummated. Both are Belonging to the same village.
2. After Some days the Accused and their family members are starts physical and mental harassment. Immediately she complained the same matter at the nearest police station with the help of her parents. Then the police registered it as U/s 498(A) of I.P.C and 3 & 4 R/w 7(1)(b) of Dowry Prohibition Act.
-- After some days The Accused was Arrested and enlarged on bail.
2. Due to the Above situations the woman was living separately with her Parents.
3. In this period, when she went for answer the calls of nature to the outskirts of their village. Then her husband come to her back side and committed rape forcibly without her consent. Also he said that his parental uncle instigated him to kill his wife, because she complained on them regarding the Dowry harassment.
4. Then she escaped from him and again complain about this issue at the same police station with the help of her parents.
-- This also registered U/s 376(A), 324, 506 and 109 of I.P.C by the Police.
5. The Police send her to the District Hospital for the purpose of treatment.
-- Intentionally delayed in this case. After the delay of many days the police applied for legal opinion of the Sr. Asst. Public Prosecutor . And Basing upon the legal opinion obtained from the Sr. APP the police deleted the Sections 376 (A) of I.P.C and 109 of I.P.C from this case.
The Legal Opinion Obtained by the Police from Sr. Assistant Public Prosecutor is as follows:
-------------------------------------------------------- LEGAL OPINION ------------------------------------------------------------
Perused the C.D. file in Cr.No 37/10 of the XXXXXX P.S and request letter for giving Opinion.
As per the facts of the case on 24-05-2010 the complainant Smt. XXXXXX presented report to the police stating that she filed the criminal case in Cr.No. 17/2010 U/s 498(A) of I.P.C against her husband Sri. XXXXXX and there after the complainant is living with her parents house at XXXXX village and that on 24-05-10 in between at 7:30 and 8:00 A.M complainant went to answer the calls of nature and at that time accused (Sri. XXXXXX) no other than her husband has committed Rape on her and beat her and threatened her with dire consequences, basing on which a case in Cr.No 37/2010 was registered for the Offences U/s 376(A), 324, 506 and 109 of I.P.C.
The Investigation discloses that the complainant was filed the Criminal case against husband for the offence U/s 498(A) of I.P.C and Dowry Prohibition Act.
However there is no decree of separation in between the husband and wife (Complainant and accused) or any custom or usage of separation in the absence of the above, offence U/s 376(A) of I.P.C is not made out. The other offences are maintainable.
As per the above, I am of the opinion that the Provision U/s 376(A) of I.P.C is not applicable in this case.
Sr. Asst. Public Prosecutor,
(Admn.), Guntur
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6. The Trail also runs with out those sections, and the announced judgement was favorable to the accused.
Hence the Questions are as follows,
Q1. Is 376(A) of I.P.C is not Applicable when there is no decree of separation between Husband and Wife?
Q2. What section is Applicable when there is no decree of Separation between Husband and Wife if in case the Husband Forcibly commits the Rape against the consent of wife?
Q3. In the Above Explained case what section has to be filed? Why the police Deleted the Section 376(A) of I.P.C .
Q4. After Announcing the judgement without those sections in the lower court, where to approach for the justice.?
Q5. Can I filed this issue at LOKAYUKTA, NHRC?
Q6. In this regard Please help us where to approach for the justice?
Devajyoti Barman
(Expert) 16 May 2014
1, No
2.physical assault, 236
3.the delhi high court only few days back disbanded the act of forcible sex between couples as rape.
4.High court
5.no since it is sub-judice.
6.fight the case on merit.You can however try for addition of charge of section 376 of IPC in the same Magistrate''s court now or during course of trial.
Rajendra K Goyal
(Expert) 16 May 2014
Repeated query:
http://www.lawyersclubindia.com/experts/Regarding-376a-of-ipc-sexual-intercourse-by-husband-472501.asp#.U3X8vSj9GRQ
Sankaranarayanan
(Expert) 16 May 2014
If it is repeated query then we are not entertain the query again. I agreed with expert Sri Barman
T. Kalaiselvan, Advocate
(Expert) 17 May 2014
Though repeated, expert Mr. Barman's opinions to the queries raised were precise, I agree to it and state that nothing more to add. Especially the recent verdict reported in the media confirms that the forcible sexual intercourse act of the husband with his wife cannot be termed as rape.
bbratnam
(Querist) 17 May 2014
Please tell me the procedure for appeal.
* Can I Appeal by writing a request letter by enclosing all the supporting documents to our District chief judge?
Devajyoti Barman
(Expert) 17 May 2014
engage an advocate.. it is not your job to prefer an appeal..it needs expertise.
T. Kalaiselvan, Advocate
(Expert) 17 May 2014
First of all learn about the procedures to be followed while filing a case or an appeal before court, it is not a matter of giving a petition to the district collector or to a minister on tour to your place, it is a case to be conducted as per law by the court, hence as advised by expert Mr. Barman, engage a lawyer or atleast consult a lawyer about observing the necessary formalities in this regard.
