THE KERALA HIGH COURT EXPOSES GAPS IN AMENDED CRIMINAL LAW WHILE DISMISSING SECTION 377 CASE AGAINST HUSBAND.

Background:

The Kerala High Court recently noted that the new legislation of Bhartiya Nyaya Sanhita, which has replaced its erstwhile Indian Penal Code, consists of gaps in the law. The court noted the existence of lacunae in the new legislation whilst dealing with the criminal proceedings instituted by a woman against her husband wherein, she lodged a complaint of an offence under Section 377 of the Indian Penal Code. The court opined the same under Sayyid Imbichi Koya Thangal @ Bayar Thangal v. State of Kerala

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Key Aspects:

The Court highlighted several key considerations:

●????? The new criminal code of Bhartiya Nyaya Sanhita (BNS) does not consist of a provision corresponding to Section 377 of the erstwhile Indian Penal Code.

●????? The court quashed the charges instituted by the woman against her husband partially with regard to Section 377, IPC.

●????? The magistrate took cognizance of the offences after the woman’s protest.

The above considerations were made by Justice A. Badharudeen, whilst dealing with a complaint registered by a woman on the alleged offences of Sections 377 and 498A of the Indian Penal Code.

The wife filed a protest complaint after the police issued a report declaring the case to be fake, which prompted the magistrate to take notice of the offenses. "Whether an offence under Section 377 of the IPC can be applied to the facts of this case?" was the main question that the court considered.

It held that, following the 2013 revision to Section 375's definition of rape, a male accused person's coerced oral sex activities against a female victim are considered rape and are not punishable by law against their spouses. Notably, sexual acts or interactions between a man and his wife do not qualify as rape as long as the woman is over fifteen years old, according to Explanation (2) of Section 375 of the IPC.

The court stated that "prima facie, the allegations to constitute commission of offence punishable under Section 498A of IPC is made out, and the allegations are not general, sweeping, and omnibus allegations," but yet declined to dismiss the proceedings for the offence under Section 498A of the IPC.

By dismissing the accusation under Section 377 and admitting the petition under Section 498A of the Indian Penal Code, the court has partially granted the plea. The court of law has partially allowed the said petition by quashing the charge under Section 377, while allowed the petition under the offence of Section 498A of the Indian Penal Code.

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Written by- Pathi Hrudaya Reddy