Kerala High Court Quashes Section 377 IPC Charge Against Husband, Discusses Absence Of An Equivalent Provision In BNS

The Court also noted that Bharatiya Nyaya Sanhita (BNS) which replaced the Indian Penal Code (IPC) does not have an offence equivalent to Section 377 IPC. The rationale for this omission, the bench said, is not stated in the statute.

So far as minors are concerned, it said most of the sexual assaults are covered by the provisions of Protection of Children from Sexual Offences Act (POCSO Act).

Justice A. Badharudeen observed:

“It is relevant to note that in the new criminal procedure law, viz., Bharatiya Nyaya Sanhita, no pari materia provisions equivalent to Section 377 of IPC is incorporated. The rationale behind this omission is not stated in BNS. But it is perceivable that almost all forms of sexual overtures/ assaults against minors aged below 18 years (both male and female) are covered by the provisions of Protection of Children from Sexual Offences Act, apart from pari materia provisions equivalent to Section 375 of IPC incorporated in Section 63 to 69 of the BNS.

Significantly, the Delhi High Court has asked the Centre about its stand on non-consensual sex perpetrated by a person of the same gender as BNS does not have a provision equivalent to Section 377 IPC. Earlier, such acts were brought under this provision.

The wife of the petitioner registered a complaint alleging that the petitioner has committed offences under Section 377 and 498A of the IPC. The police filed a report after investigation saying that the case was false. The wife filed a protest complaint against the report. The Magistrate recorded the statement of the wife and 4 other witnesses. Thereby Magistrate passed an order taking cognizance for the offences under Section 377 and 498A IPC. The petitioner filed this case to quash the proceedings before the Magistrate.

As per the complainant, while petitioner's and complainant's marriage was subsisting, he married a 16 year old minor girl. When the complainant demanded divorce, she was tortured and was asked to get out of their house with their children. Further, it was also alleged that the accused left their home with his articles in January 2021 to never return and neglected the complainant and the children and failed to maintain them.

The Court relied on its own decision in Vinod Thankaraj and Another v State of Kerala and Others (2020) whereby it was held that after the 2013 amendment, forcible acts of oral sex committed by a male accused on a female victim will come under Section 375 of IPC and not under Section 377. Since sexual acts by a man on his own wife is exempt from the offence of rape, no offence in that regard will stand against him.

The Court held that going through the prosecution records, the allegation for offences under Section 498A of IPC is made out. The Court added that they were specific allegation and was not general, sweeping and omnibus allegations. The Court held that the proceedings for the offence of Section 498A cannot be quashed.

Counsel for the Petitioner: Advocates Rameez Nooh, Ronit Zachariah, Badir Sadique, Fathima K., P. Rafthas. K. N. Muhammed Thanveer

Counsel for the Respondents: Public Prosecutor Adv. M. P. Prasanth, Adv. K. M. Sathyanatha Menon K. M.

Case No: Crl.M.C. 4759 of 2024

Case Title: Sayyid Imbichi Koya Thangal @ Bayar Thangal v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 528