Case Details-
Case No: Criminal Miscellaneous Application No. 79 of 2021
Bench: Hon’ble Sharad Kumar Sharma, J.
In a recent judgement the Uttarakhand High Court observed that in this modernized society the offence under Section 376 of IPC is being misused as a weapon by the females as soon as there arise certain differences between herself and her male counterpart.
The Hon’ble Court further observed that there are a number of undisclosed factors that cannot be ruled out as Section 376 IPC is being used to duress upon the other side.
The Hon’ble Court quoted the judgement of Hon’ble Apex Court as reported in 2021 SCCOnline SC 181, Sonu alias Subhash Kumar v. State of UP and another where in para 10 and 11 contain that when a physical relationship is established with a consent and if it justifies the test of exclusion to the provision contained under Section375 of the IPC, it will not be a rape at the most it could be taken as to be an offence for the breach of trust but at least not an offence under Section 376.
Akin to the principle laid down by the Hon’ble Apex Court, the Hon’ble High Court in Criminal Misc Application No. 730 of 2022, Vijay Shukla v State of Uttarakhand and another, the Court held that when there is a consensual relationship with an active participation by female, there would be no offence under Section 376 of IPC, except for an offence of breach of trust.
The Court observed that there are various facets provided under the definition of rape under Section 375 of the IPC which primarily is pivoted around the “consent of the opposite sex”. If there is an element of consent available for the commission of the offence under Section 376 of the IPC or is apparently made out from allegations, it cannot be termed to be a rape because, it is a consensual relationship which was established by the consent of the opposite sex.
In this instant case the relationship had begun in 2005 and continued even after the marriage of the man to another lady.
The Court while deciding the element of consent, which will be required to satisfy the element provided under Section 375 of IPC, had relied upon the judgement of Hon’ble Apex Court in 2022 SCCOnline SC 1032, Shambhu Kharwar v State of UP and another and upon due ponderance found that instant case deserve to be quashed.