Improbable To Find Husband's Semen On Wife After 5 Months Of Separation, It Persists For Only Few Days: MP High Court Quashes Charge U/S 377 IPC

The single-judge bench of Justice Anand Pathak observed that the charge under Section 377 IPC [now deleted in BNS] had been falsely foisted upon the petitioner-husband.

“…In all studies it is clear that no sperm can be found over the clothes/anal swab/vaginal swab more than some days and certainly not remain in existence for 5 months. Therefore, taking such swabs and finding semen over penty vide Exhibit -A, vaginal slide -B and anal slide -C appears to be a case in which petitioner has been implicated on false pretext”, the bench sitting at Gwalior noted.

After studying the FSL Report, the single bench underscored that semen and sperm could not exist for a period of 5 months owing to the functions of the complainant, including bathing and maintaining cleanliness. Hence, the court felt that the allegations involving Section 377 and 354 IPC levelled against the petitioner-husband, who is a Major in the Indian Army at Manipur, were primarily ill-motivated.

In this case, wherein the husband, along with his family members, has been implicated in a plethora of offences like dowry demand and mental cruelty, the court also remarked that incompatible couples, such as in this case, would be the worst enemies.

“When bouquet of cases like Domestic Violence Act, Section 498-A of IPC… Sections 354 and 377 of IPC are registered then one has to tread cautiously because allegations may precede with malice and to wreak vengeance. “Couple when shares nuptial bliss, has the propensity to transcendent relation into another dimension but when shares non compatibility then they are worst enemies”, the court accordingly observed.

The court has made a few pertinent observations regarding the life span of semen inside a body post sexual assault after studying the LGC Forensic Journal, Journal of Forensic Sciences Edition 2016, and Forensic Science International, 19 (1982) 135 -154 by G.M. Willott and J.E. Allard. According to these studies, the duration of semen in anal and vaginal swabs cannot normally be more than 3 days.

Referring to the LGC Forensics Study's investigation results of sexual offences in the UK, the court pointed out that semen in anal swabs is usually found for up to 3 days, and samples can be taken up to 3 days.

“Therefore, it is highly surprising that after 5 months samples have been collected by the police and very surprising semen was found over her penty/vaginal swab/anal swab”, the court further added that no case has been made out even for trial on the basis of medical evidence.

About the allegations regarding the husband video graphing the sexual acts involving his own wife and using it later to blackmail her, the court observed that no CD or Pen Drive has been recovered in the course of the investigation.

“…Similarly, it is very unnatural to the petitioner to blackmail his wife for such acts. There is no occasion for male to blackmail his wife and it is not clear what goal he could have achieved by blackmailing her”, the court opined.

The court also found the allegations against the husband's relatives, who were his brother, father and mother, as omnibus and vague.

Noting the above, among other reasons, the court quashed the FIRs registered and chargesheet filed against the husband and his relatives for being motivated by the divorce petition filed by the husband earlier. The petitioner had also filed another petition to quash the lower court's order directing him to tender a DNA sample for DNA profiling; this petition was also allowed by the High Court.

“...it appears that stereotype allegations have been levelled just to harass the petitioners and his husband and shoddy investigation carried out, just to implicate them” the court concluded that criminal cases against the accused were a mere counterblast to the divorce proceedings because of domestic incompatibility between the parties.

Background

The marriage between the parties was solemnized in 2018 as per Hindu rites and rituals. According to the complainant, the husband and his relatives demanded a Fortuner Car and financial assistance from her family as dowry soon thereafter. After some time, she was allegedly subjected to unnatural oral and anal sex repeatedly since their honeymoon. This was followed by continuous harassment from her husband's family members.

In 2020, the petitioner filed a divorce case against the complainant before the Family Court, Etawah, stating she was harassing the petitioner at his place of postings, and refused to live with his parents. Meanwhile, the petitioner had also complained about the mental ailments of his wife and her volatile nature to the Superintendent of Police.

Advocates for the Petitioners: Shri Harshit Sharma and Shri Avinash Chaturvedi

For Respondent/State: Shri Ravindra Singh Kushwah – Dy. Advocate General

Advocates for Respondent No.2/Complainant: R.K. Sharma – Senior Advocate with Shri Mahendra Chaudhary and Shri Abhijeet Singh Tomar

Case No: Misc.Criminal Case No.51674/2022 & Connected Matters

Citation: 2024 Live Law (MP) 142