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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 13.05.2025
+ CRL.REV.P. 990/2024, CRL.M.A. 22619/2024
.....Petitioner
Through: Mohd. Mustafa, Mr. Ratnesh
Tiwari, Ms. Arpita Biswas and
Md. Maroof, Advocates
versus

THE STATE NCT OF DELHI .....Respondent

Through: Mr. Rajkumar, APP for the
State with SI Rakesh Kumar,
P.S. Vijay Vihar.

CORAM:
HON'BLE DR. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
DR. SWARANA KANTA SHARMA, J
1. By way of this revision petition, the petitioner seeks setting
aside of the order dated 16.02.2023 [hereafter ‗impugned order‘]
passed by learned Additional Sessions Judge (FTSC)(RC), Rohini
Courts, Delhi [hereafter ‗Sessions Court‘] in case arising out of FIR
bearing no. 165/2023, registered at Police Station Vijay Vihar, Delhi.

FACTUAL BACKGROUND
2. The petition has been preferred in the following factual
context: a complaint was lodged by the complainant i.e., wife of the
petitioner, wherein it was stated that marriage between them was

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 solemnized on 19.02.2022 as per Hindu rites and ceremonies, and her
family had allegedly spent approximately ₹25 lakhs on the marriage.
As alleged, on the very first night, the complainant discovered that
her husband i.e. the petitioner was unable to consummate the
marriage, even after taking medication. Even during their stay in
Manali for their honeymoon, the situation remained unchanged.
When she had informed the same to her in-laws, they had refused to
do anything and in fact, she was informed by her sister-in-law that
the family was already aware of her husband‘s alleged impotency
prior to the marriage. When the petitioner had again confronted her
in-laws, she was allegedly physically assaulted by them. She had then
gone back to her parental home on 24.07.2022. It is alleged that on
19.03.2023, when she was alone at her home, her father-in-law had
visited her home, molested her, attempted to rape her, and fled after
issuing threats to her. Subsequently, a relative who had arranged their
marriage had contacted her father-in-law to suggest to the
complainant to return to the matrimonial home. Upon being
questioned by her mother, the complainant had disclosed the
attempted sexual assault and expressed fear due to the threats
received. The complainant alleged that the marriage was a conspiracy
by her husband and father-in-law to establish illicit relations and
extort money from her family. On these allegations, the FIR was
initially registered for commission of offence under Sections
354/354B of the Indian Penal Code, 1860 [hereafter ‗IPC‘].

3. During the course of investigation, the statement of the

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 complainant under Section 164 of the Code of Criminal Procedure,
1973 [hereafter ‗Cr.P.C.‘] was recorded, wherein the complainant
reiterated the above allegations and further alleged that one day at her
matrimonial home, when she was in the kitchen, her brother-in-law
Ravi Kant had come there and held her tightly from the chest and
waist and kissed her on her neck. She further alleged that on
19.03.2023, her father-in-law Rajpal Singh had, in fact, forcefully
established physical relations with her. The complainant also stated
that initially, when she had gone for honeymoon to Manali, oral
sexual intercourse had taken place between her and her husband
(petitioner herein). After completion of investigation, the police had
filed chargesheet for offence under Sections 354/354B/376/377/323
of IPC, against the accused persons Ravi Kant, , Rajpal al
Singh, Bharti, and Khamoush Devi.

4. After hearing arguments on charge, the learned Sessions Court

was pleased to discharge all the accused persons, except the
petitioner . Thus, vide impugned order 16.02.2023, the e
learned Sessions Court found the petitioner liable to face trial for
offence under Section 377 of IPC, for the following reason:

―As against the accused husband Sunny Kant, there are clear
allegation that he did oral sex with the prosecutrix against her
consent. Accordingly in the considered opinion of this court,
charge u/s 377 IPC is made out against him‖.

SUBMISSIONS BEFORE THE COURT

5. The learned counsel appearing for the petitioner assails the
aforesaid order and argues that the same is legally unsustainable,

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 misconceived, and contrary to the settled principles of law as well as
the facts on record. It is argued that the statement recorded under
Section 164 of Cr.P.C. does not disclose the commission of any
offence under Section 377 of IPC against the petitioner. It is
contended that the complainant has nowhere stated, even indirectly,
that the alleged act of oral sex was performed without her consent.
The learned Sessions Court, however, has erroneously proceeded on
the presumption that the act was committed against her will, which is
a gross misreading of the material on record. It is further submitted
that the statement of the complainant suffers from serious
contradictions, since on one hand, she alleges that the petitioner was
not capable of performing sexual intercourse even after taking
medicine; on the other hand, she levels such serious allegations
which are inconsistent with this claim. It is further contended that in
the present case, there is neither any prima facie case against the
petitioner nor any grave suspicion arises against him. In addition to
these contentions, the learned counsel for the petitioner also argues
that as held by several High Courts, the charge for offence under
Section 377 of IPC cannot sustain against the husband on the
allegation levelled by the wife, in view of Exception 2 to Section 375
of IPC. Therefore, it is prayed that the present petition be allowed and
the impugned order be set aside.

6. The learned APP for the State, on the other hand, argues that
the learned Sessions Court has rightly framed charge for offence
under Section 377 of IPC against the petitioner, on the basis of

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 allegations levelled against him by the complainant. It is submitted
that the question of consent or absence thereof is a matter of trial and
cannot be conclusively determined at the stage of framing of charge.
Therefore, it is prayed that the present petition be dismissed.

7. This Court has heard arguments advanced by the learned

counsel for both parties and has carefully perused the record of the
case.

ANALYSIS & FINDINGS

8. The impugned order has been assailed by the petitioner
primarily on two grounds. First, it is the case of petitioner that the
rigours of Section 377 of IPC in the context of a marital relationship
are not attracted, in view of the established legal position that such
acts between a husband and wife are outside the purview of the
offence by virtue of Exception 2 to Section 375 of IPC. Secondly, it is
contended that the material on record, including the statement of the
complainant recorded under Section 164 of Cr.P.C., does not disclose
any allegation that oral sex between the complainant and the
petitioner took place without her consent.

9. The first issue raised by the petitioner is whether, in a

subsisting marital relationship, an act of oral sex between husband
and wife would attract the provisions of Section 377 of IPC. It is the
petitioner‘s case that in a legally recognized marriage, there exists an
implied presumption of consent for consensual sexual acts, and that
the mere nature of the act cannot by itself constitute an offence under
Section 377 of IPC.

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 10. To adjudicate the issue in question, it shall be first relevant to
take note of Section 377 of IPC, which reads as under:

―377. Unnatural offences.— Whoever voluntarily has carnal

intercourse against the order of nature with any man, woman or
animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.‖

11. Section 377 of IPC, as it reads in the statute, criminalizes

‗carnal intercourse against the order of nature with any man, woman
or animal‘. Historically, this provision was invoked to penalize non-
vaginal sexual acts, including anal and oral sex, irrespective of
consent, and regardless of whether the act was between same-sex or
opposite-sex partners. The emphasis of this section was not on the
consent of the parties but rather on the nature of the sexual act being
‗unnatural‘ as per the statutory language. It was also gender-neutral
in its application, penalizing both the perpetrator and the consenting
adult partner.

12. Next, Section 375 of IPC, as it stood prior to it being amended

by Criminal Law (Amendment) Act, 2013, read as under:

―375. Rape.
A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the six following
descriptions:—
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained

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 by putting her or any person in whom she is interested in fear
of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not
her husband, and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly.- With her consent, when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of any
stupefying or unwholesome substances, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly.- With or without her consent, when she is under
sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife,
the wife not being under fifteen years of age, is not rape.‖
(Emphasis added)

13. Clearly, Section 375 of IPC, prior to its amendment in 2013,

was narrowly worded and dealt exclusively with the act of forced
sexual intercouse (i.e., penile-vaginal intercourse), committed by a
man against a woman, under certain specified circumstances. It did
not encompass other forms of non-consensual sexual acts such as oral
or anal penetration, which were to be included under Section 377 of
IPC. However, the Exception to Section 375 of IPC granted
immunity to a husband from being prosecuted for rape committed
against his wife, provided she was not under fifteen years of age.

14. By way of the Criminal Law (Amendment) Act, 2013, the

definition of rape under Section 375 of IPC was amended, and the
same now reads as under:

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 ―375. Rape.
A man is said to commit ―rape‖ if he—
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or
any other person; or
(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman
or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or any other
person; or
(d) applies his mouth to the vagina, anus, urethra of a woman
or makes her to do so with him or any other person, under the
circumstances falling under any of the following seven
descriptions—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is
not her husband and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly.—With or without her consent, when she is under
eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation 1.—For the purposes of this section, ―vagina‖
shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates

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 willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act
of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not
constitute rape.
Exception 2.- Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years of
age, is not rape.‖

15. Thus, the definition of rape under Section 375 of IPC was
substantially broadened to include several non-consensual sexual
acts, such as follows:

● Penile penetration into the vagina, mouth, urethra, or anus of a

woman, or causing her to do so with any person;
● Insertion of any object or any part of the body (not being the
penis) into the vagina, urethra, or anus of a woman, or causing
her to do so with any person;
● Manipulation of any part of the woman‘s body so as to cause
penetration into the vagina, urethra, anus, or any part of her
body;
● Oral application of the mouth to the vagina, anus, or urethra of
a woman or causing her to do so with any person.

16. Each of the above sexual acts if done without the woman‘s
consent and under any of the enumerated seven circumstances (such
as against her will, by coercion, deception, or when she is incapable
of giving consent, etc.), now fall squarely within the ambit of rape.

17. Therefore, the acts such as anal intercourse or oral sex – earlier

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 falling exclusively under the ambit of Section 377 of IPC – are now
included within the ambit of Section 375(a) of IPC.

18. It is also material to note that Exception 2 was also inserted in

the amended Section 375 of IPC, in respect to acts committed by a
husband, and it was clarified that ―sexual intercourse or sexual acts‖
by a man with his own wife, the wife not being under fifteen years of
age, would not amount to rape. Notably, the word ‗sexual acts‘ was a
new addition here, and the same refers to the different kinds of sexual
acts now included in the meaning of rape, which includes anal
intercourse or oral intercourse.

19. In this background, it shall now be apposite to take note of the

decision of the Hon‘ble Supreme Court in case of Navtej Singh
Johar and Ors. v. Union of India Thr. Secretary Ministry of Law
and Justice: (2018) 10 SCC 1. Firstly, the concluding part of the
decision is set out below:

―645. CONCLUSION
645.1. In view of the aforesaid findings, it is declared that
insofar as Section 377 criminalises consensual sexual acts of
adults (i.e. persons above the age of 18 years who are
competent to consent) in private, is violative of Articles 14,
15, 19 and 21 of the Constitution. It is, however, clarified that
such consent must be free consent, which is completely
voluntary in nature, and devoid of any duress or coercion.
645.2. The declaration of the aforesaid reading down of Section
377 shall not, however, lead to the re-opening of any concluded
prosecutions, but can certainly be relied upon in all pending
matters whether they are at the trial, appellate, or revisional
stages.
645.3. The provisions of Section 377 will continue to govern
non-consensual sexual acts against adults, all acts of carnal
intercourse against minors, and acts of bestiality.

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 645.4. The judgment in Suresh Kumar Koushal v. Naz
Foundation (Suresh Kumar Koushal v. Naz Foundation, (2014)
1 SCC 1 : (2013) 4 SCC (Cri) 1) is hereby overruled for the
reasons stated in paras 642 and 643.‖
(Emphasis added)

20. The Hon‘ble Supreme Court in the aforesaid decision held that
Section 377 of IPC is unconstitutional to the extent it punishes (i)
consensual, (ii) sexual acts, (iii) between adults in private.

21. Certain other observations of the Hon‘ble Supreme Court are

noteworthy, to understand as to why Section 377 of IPC was read
down, especially insofar as the effect of amended Section 375 of IPC,
post-2013, on Section 377 is concerned. These observations are set
out below:

―366. After 2013, when Section 375 was amended so as to

include anal and certain other kinds of sexual intercourse
between a man and a woman, which would not be criminalised
as rape if it was between consenting adults, it is clear that if
Section 377 continues to penalise such sexual intercourse, an
anomalous position would result. A man indulging in such
sexual intercourse would not be liable to be prosecuted for rape
but would be liable to be prosecuted under Section 377.
Further, a woman who could, at no point of time, have been
prosecuted for rape would, despite her consent, be prosecuted
for indulging in anal or such other sexual intercourse with a
man in private under Section 377. This would render Section
377, as applied to such consenting adults, as manifestly
arbitrary as it would be wholly excessive and disproportionate
to prosecute such persons under Section 377 when the
legislature has amended one portion of the law in 2013, making
it clear that consensual sex, as described in the amended
provision, between two consenting adults, one a man and one a
woman, would not be liable for prosecution. If, by having
regard to what has been said above, Section 377 has to be read
down as not applying to anal and such other sex by a male-
female couple, then the section will continue to apply only to
homosexual sex. If this be the case, the section will offend

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 Article 14 as it will discriminate between heterosexual and
homosexual adults which is a distinction which has no rational
relation to the object sought to be achieved by the section —
namely, the criminalisation of all carnal sex between
homosexual and/or heterosexual adults as being against the
order of nature. An argument was made by the petitioners that
Section 377, being vague and unintelligible, should be struck
down on this ground as it is not clear as to what is meant by
―against the order of nature‖. Since Section 377 applies down
the line to carnal sex between human beings and animals as
well, which is not the subject-matter of challenge here, it is
unnecessary to go into this ground as the petitioners have
succeeded on other grounds raised by them. Viewed either
way, the section falls foul of Article 14.
***
423. At this point, we look at some of the legislative changes
that have taken place in India's criminal law since the
enactment of the Penal Code. The Criminal Law (Amendment)
Act, 2013 imported certain understandings of the concept of
sexual intercourse into its expansive definition of ―rape‖ in
Section 375 of the Penal Code, which now goes beyond penile-
vaginal penetrative intercourse. It has been argued that if
―sexual intercourse‖ now includes many acts which were
covered under Section 377, those acts are clearly not ―against
the order of nature‖ anymore. They are, in fact, part of the
changed meaning of sexual intercourse itself. This means that
much of Section 377 has not only been rendered redundant but
that the very word ―unnatural‖ cannot have the meaning that
was attributed to it before the 2013 Amendment. Section 375
defines the expression ―rape‖ in an expansive sense, to include
any one of several acts committed by a man in relation to a
woman. The offence of rape is established if those acts are
committed against her will or without the free consent of the
woman. Section 375 is a clear indicator that in a heterosexual
context, certain physical acts between a man and woman are
excluded from the operation of penal law if they are consenting
adults. Many of these acts which would have been within the
purview of Section 377, stand excluded from criminal liability
when they take place in the course of consensual heterosexual
contact. Parliament has ruled against them being regarded
against the ―order of nature‖, in the context of Section 375. Yet
those acts continue to be subject to criminal liability, if two
adult men or women were to engage in consensual sexual
contact. This is a violation of Article 14.‖

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 22. Thus, the Hon‘ble Supreme Court observed that after the
amendment of Section 375 of IPC in the year 2013, the definition of
rape was expanded to include anal, oral, and other kinds of sexual
acts, but these acts were not treated as rape if they were done,
between a man and a woman, with consent. Now, if Section 377 of
IPC still punished these same acts, even when done with consent,
merely because they were not penile-vaginal sex, then it created
contradictions and an anomalous position – such as if a man and a
woman consent to anal sex, the man can‘t be prosecuted for rape
under Section 375 (because it allows consensual non-vaginal acts),
but he could still be punished under Section 377. Similarly, a woman
could even be punished under Section 377 of IPC for the same act,
which was never the intention of the rape law. The Hon‘ble Supreme
Court was of the view that this contradiction made Section 377 of
IPC arbitrary, unfair, and discriminatory.

23. Therefore, the Court held that Section 377 of IPC should not
apply to consensual sexual acts between adults, whether heterosexual
or homosexual, as doing so would violate their right to equality under
Article 14.

24. At this juncture, it is to be noted that Exception 2 to Section

375 of IPC provides that sexual intercourse by a man with his own
wife, if she is not under fifteen years of age, is not rape. This creates
a legal presumption that a wife‘s consent to sexual intercourse is
implied by virtue of marriage. In effect, as on date, the law does not

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 recognise the concept of marital rape.

25. Thus, in the considered opinion of this Court, there is no basis

to assume that a husband would not be protected from prosecution
under Section 377 of IPC, in view of Exception 2 to Section 375 of
IPC since the law (amended Section 375 of IPC) now presumes
implied consent for sexual intercourse as well as sexual acts
(including anal or oral intercourse within a marital relationship).
Therefore, in the context of a marital relationship, Section 377 of IPC
cannot be applied to criminalise non-penile-vaginal intercourse
between a husband and wife. Such an interpretation would be in line
with the reasoning and observations of the Hon‘ble Supreme Court in
Navtej Singh Johar (supra).

26. The Madhya Pradesh High Court, in Umang Singhar v. State

of Madhya Pradesh: 2023 SCC OnLine MP 3221, decided the same
issue and held that in view of amended definition of Section 375 of
IPC, offence under Section 377 of IPC between husband and wife has
no place and, as such it is not made out. The relevant observations are
as under:

―12. Indeed, the primary argument of the learned counsel for

the petitioner was that when Section 375 IPC defines ‗rape‘
and also by way of amendment in 2013, Exception-2 has been
provided which bespeaks that sexual intercourse or sexual acts
by a man with his own wife is not a rape and therefore if any
unnatural sex as defined under section 377 is committed by the
husband with his wife, then it can also not be treated to be an
offence……
13. To fathom the depth of submissions made by the learned
counsel for the petitioner, it is imperative to go-through the
definition of ‗rape‘, in that, for committing rape, as per Section
375(a), an offender is a ‗man‘ who uses the part of the body -

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 (a) Penis, as per Section 375(b) body-parts other than penis and
375(c) any other object. Simultaneously, the said definition
describes - at the receiving end the body parts are (a) Vagina,
(b) Urethra, (c) Anus, (d) Mouth and (e) other body parts.
Considering the offence of Section 377 i.e. unnatural, although
it is not well-equipped and offender is not defined therein but
body parts are well defined, which are also included in Section
375 i.e. carnal intercourse against the order of nature. At this
juncture, it is indispensable to see what is unnatural. The
Supreme Court in a petition challenging the constitutionality of
Section 377 IPC criminalizes ‗carnal intercourse against the
order of nature‘ which among other things has been interpreted
to include oral and anal sex. Obviously, I find that Section 377
of IPC is not well-equipped. Unnatural offence has also not
been defined anywhere. The five-judge bench of the Supreme
Court in re Navtej Singh Johar (supra) testing the
constitutionality of said provision although held that some parts
of Section 377 are unconstitutional and finally held if unnatural
offence is done with consent then offence of Section 377 IPC is
not made out. The view of the Supreme Court if considered in
the light of amended definition of Section 375 and the
relationship for which exception provided for not taking
consent i.e. between husband & wife and not making offence
of Section 376, the definition of rape as provided under Section
375 includes penetration of penis in the parts of the body i.e.
vagina, urethra or anus of a woman, even though, the consent is
not required then as to how between husband and wife any
unnatural offence is made out. Apparently, there is repugnancy
in these two situations in the light of definition of Section 375
and unnatural offence of Section 377. It is a settled principle of
law that if the provisions of latter enactment are so inconsistent
or repugnant to the provisions of an earlier one that the two
cannot stand together the earlier is abrogated by the
latter………
***
16. At this point, if the amended definition of Section 375 is
seen, it is clear that two things are common in the offence of
Section 375 and Section 377 firstly the relationship between
whom offence is committed i.e. husband and wife and secondly
consent between the offender and victim. As per the amended
definition, if offender and victim are husband and wife then
consent is immaterial and no offence under Section 375 is
made out and as such there is no punishment under Section 376
of IPC. For offence of 377, as has been laid down by the
Supreme Court in re Navtej Singh Johar (supra), if consent is

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 there offence of Section 377 is not made out. At the same time,
as per the definition of Section 375, the offender is classified as
a ‗man‘. here in the present case is a ‗husband‘ and victim is a
‗woman‘ and here she is a ‗wife‘ and parts of the body which
are used for carnal intercourse are also common. The offence
between husband and wife is not made out under Section 375
as per the repeal made by way of amendment and there is
repugnancy in the situation when everything is repealed under
Section 375 then how offence under Section 377 would be
attracted if it is committed between husband and wife.‖

27. In this regard, the petitioner has placed reliance on the decision
of the High Court of Uttarakhand in Dr. Kirti Bhushan Mishra v.
State of Uttarakhand and Anr: 2024 SCC OnLine Utt 2023 wherein
it has been held as under:

‗...From the perusal of above observation made in the case of

Navtej Singh Johar (Supra), it is clear that it was considered, in
that case by the Hon‘ble Supreme Court that what is not an
offence under Section 375 IPC cannot be an offence under
Section 377 IPC (two consenting adults for acts in private, as
specified under Section 375 IPC). Exception 2 to Section 375
IPC cannot be taken out from it while reading Section 377 IPC
in relation to husband and wife. If an act between husband and
wife is not punishable due to operation of Exception 2 to
Section 375 IPC, the same act may not be an offence under
Section 377 IPC‘.

28. The Division Bench of this Court, in The State (GNCT of

Delhi) v. Khan Mohd. @ Guddu: CRL.L.P. 201/2021, also dismissed
a criminal leave petition filed by the State, challenging the acquittal
of the accused under Sections 377/328 of IPC, where the accused was
husband of the complainant. In the said case, the learned APP for the
State had himself drawn the Court‘s attention to the discussion on
Section 377 of IPC in the decision of the Hon‘ble Supreme Court in

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 Navtej Singh Johar (supra), and submitted that the charge under
Section 377 of IPC may be covered by Exception 2 to Section 375 of
IPC.

29. Accordingly, this Court is of the view that charge for offence
under Section 377 of IPC could not have been framed against the
petitioner, who is the husband of the complainant.

30. Be that as it may, even if this Court was not to decide the
question of whether an offence under Section 377 of IPC can be
made out against a husband or not, one position is clear – that a
‗consensual‘ oral or anal intercourse between any two adults, in
private, is not a criminal offence punishable under Section 377 of
IPC, as held by Hon‘ble Supreme Court in Navtej Singh Johar
(supra).

31. It is pertinent to note that the complainant and the petitioner

herein are legally wedded to each other, and the allegations arise
from a matrimonial dispute. Importantly, the complainant has not
specifically alleged that the act of oral sex was performed against her
will or without her consent. Rather, her statement recorded under
Section 164 of Cr.P.C. only mentions that ―Hum Manali gaye, vahan
oral sex hua, unhone apna private part mere muhh mei dala‖. This
statement, in isolation, does not reveal any allegation of coercion,
threat, or absence of free will. In fact, immediately preceding this
statement, the complainant had stated that “nothing had happened on
their first night after the marriage, even though her husband had
taken some medication.” This sequence of statements gives rise to an

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 inherent contradiction – on the one hand, the complainant alleges
lack of sexual capability in the petitioner and both of them trying to
engage in sexual relations; and on the other hand, she levels
allegations suggesting the performance of oral sex. However, what is
conspicuously absent – is any allegation that the act complained of
was non-consensual or performed under duress.

32. At this stage, it is necessary to reiterate the settled law that

governs framing of charges. At the stage of framing charge, the Court
is not required to conduct a meticulous examination of the evidence
or to evaluate its probative value. However, there must exist a prima
facie case, and a strong suspicion that the accused has committed an
offence. A charge cannot be framed merely on the basis of vague
allegations or when the material on record does not disclose the
essential ingredients of the alleged offence.

33. Applying this principle to the facts of the present case, it is

evident that there is not even a basic allegation by the complainant
that the act of oral sex was performed without her consent. There is
neither any assertion of resistance nor any mention of physical force,
threat, intimidation, or any element that would negate consent. In the
absence of such an averment, the essential ingredient of lack of
consent – central to constituting an offence under Section 377 of IPC
post-Navtej Singh Johar between any two adults – is clearly missing.
Thus, there is not only a lack of prima facie case, but even the
threshold of strong suspicion is not met.

34. It is also concerning that the learned Sessions Court, while

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 passing the impugned order, appears to have proceeded on an
erroneous presumption by observing that the petitioner “did oral sex
with the prosecutrix against her consent”, when such a claim is
nowhere reflected in the complainant‘s statement recorded under
Section 164 of Cr.P.C., or in the initial FIR, which, in fact, had no
mention of any oral sex. This observation by the learned Sessions
Court is a clear misreading of the material on record, and appears to
have been made without any basis.

35. In light of the above, and considering the material placed on

record, this Court is of the considered opinion that no prima facie
case is made out against the petitioner for the offence under Section
377 of IPC. The impugned order directing the framing of charge is,
therefore, unsustainable in law and is liable to be set aside.

36. Accordingly, the impugned order dated 16.02.2024, to the

extent it directs framing of charge under Section 377 of IPC against
the petitioner, is quashed and set aside.

37. The revision petition is accordingly allowed and disposed of.

Pending application also stands disposed of.

38. The judgment be uploaded on the website forthwith.

DR. SWARANA KANTA SHARMA, J

MAY 13, 2025/ns

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