Regarding 376a of ipc, sexual intercourse by husband
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?
Nadeem Qureshi
(Expert) 16 May 2014
Q1. Is 376(A) of I.P.C is not Applicable when there is no decree of separation between Husband and Wife?
section 376A will not be attract.
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?
no section will be applicable regarding rape
Q3. In the Above Explained case what section has to be filed? Why the police Deleted the Section 376(A) of I.P.C .
only for hurt and threaten
Q4. After Announcing the judgement without those sections in the lower court, where to approach for the justice.?
appellate court
Q5. Can I filed this issue at LOKAYUKTA, NHRC?
no you can not
Q6. In this regard Please help us where to approach for the justice?
appellate court
Guest
(Expert) 16 May 2014
Don't try to split the hair.
First of all, you have not mentioned how you are concerned with the case. It seems as if the instance is not real but is one of your law school exercise required to be solved by you.
Secondly, even if the incident is real one, there becomes no rape case of rape when she has not been legally separated from her husband.
Thirdly, if the incident is real one, you have not mentioned whether forcible intercourse was established during her medical examination or not.
Fourthly, even if you say that the husband enacted forcible intercourse, you have also not mentioned whether she resisted or not and whether or not she got hurt during resistence for forcible act upon her.
So, from all angles, the incident seems to be a hypothtical and unreal one. Had not that been unreal, the act in the open would have been noticed by many other persons also, who would also have come to attend call of nature in the open.
bbratnam
(Querist) 16 May 2014
a. The above said womenwa my sister.
b. They are not legally separated. But Living separately due to the 498(A) was filed already and the same was under the investigation
c. The Incident is real, The Forcible intercourse was established in the medical examination.
d. She resisted, also she hurtled. Her hands got threatened.
Guest
(Expert) 16 May 2014
You should have mentioned in your original post, what you have clarified now.
However, instead of launching multiple cases, better pursue the original case of 498(A) of I.P.C and 3 & 4 R/w 7(1)(b) of Dowry Prohibition Act on merits of the case. Rape case may not stand.
Rajendra K Goyal
(Expert) 16 May 2014
Repeated query:
http://www.lawyersclubindia.com/experts/Legal-opinion-please-help-472511.asp#.U3X84Sj9GRQ
T. Kalaiselvan, Advocate
(Expert) 17 May 2014
Query was properly addressed i the previous post itself, hence no opinion for repeated query.
