Kerala HC highlights disparity in Bharatiya Nyaya Sanhita while dismissing case under Section 377 against husband

The Kerala High Court (HC) recently observed that there is no equivalent of Section 377 in the Indian Penal Code (BNS), which replaced the Indian Penal Code (IPC). this provision.

The court presided over by Justice A. Badharudeen observed that a wife filed a complaint against her husband charging him with offenses under Sections 377 and 498A of IPC relating to unnatural sexual offenses and ” Husband or husband’s relative”. A woman subjected her to cruelty,” respectively. A police report filed said the case was false, but the wife filed a protest complaint, leading the magistrate to admit the offences.

The court examined the key question – “Whether the offense under Section 377 of the IPC can be applied to the facts of this case?” It held that after the definition of rape under Section 375 was revised in 2013, the act of forced oral sex performed on the female victim by the male accused constituted rape, while the husband may be exempted. It is worth noting that Interpretation (2) of Article 375 of the Criminal Law clearly stipulates that sexual intercourse or behavior between a man and his wife who is over 15 years old does not constitute rape. The court held that the complainant was an adult and said: “It must, therefore, be held that the allegation of the husband committing a punishable offense against his wife under Section 377 of the IPC is not tenable in law.”

Further, the court noted: “It is important to note that the new Code of Criminal Procedure, i.e., Bharatiya Nyaya Sanhita (hereinafter referred to as “BNS”), does not incorporate a co-accused provision equivalent to Section 377 of the IPC. The rationale behind this omission is not stated in the BNS. However, it can be seen that in addition to the equivalent legal provisions equivalent to Article 375 of the Convention on the Rights of the Child, the provisions of the Protection of Children from Sexual Offenses Act cover almost all crimes against minors (male and female) under the age of 18. Sexually suggestive/forms of sexual assault.

However, the court refused to quash proceedings for an offense under Section 498A of the IPC, stating that “the allegations constituting an offense punishable under Section 498A of the IPC are prima facie established and that they The accusations are not general, comprehensive or comprehensive.

As a result, the court partially allowed the petition and quashed the Section 377 charge while allowing the offense to be tried under Section 498A.