• Complaint under section 498 376 and 377

My brother filed an application in police station mentioning haresment and torchering against her wife on 23rd March. On behalf of husband application police called both parties for compromise on 3rd and 4th April in police station.(till 3rd April wife was residing in husbands home).on 4th April during conversation in police station my brother gave divorce(talak) to her wife as per our Muslim customs and after 2 days I.e on 6th April he sent written divorce (talaknama) by speed post which was not accepted by her on 7th April and it was returned to us.on 7th itself she filled a complain in same police station against her husband and 5 family members(only ipc 498 against 5 members) alleging rape,unnatural sex,harresment  and dowry. He was arrested and now in judicial custody. Remand was not granted by sessions court. Before 4 days regular bail was rejected by sessions court Ahmedabad Gujarat. More over she did all this things looking that there is marriage of my younger brother on 6th may 2016. Pl guide me what should be done now and also whether wife can lodge complain against husband under section 376 and 377? Can we get bail or not?
Asked 7 months ago in Criminal Law from Ahmedabad, Gujarat
Religion: Muslim
1. Did he not file for anticipatory bail well in time? It seems that he acted very casually, thereby giving sufficient  opportunity to the police to arrest him. Since sessions court has also rejected your bail application the only remedy now is to move the High Court for bail. 

2. A complaint by wife under sections 376 and 377 against her husband is maintainable.
Ashish Davessar
Advocate, Jaipur
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1) what are the grounds of rejection of bail by sessions court? 

2) you should apply to HC for bail 

3)she was the legally wedded wife . no case of rape is made out against husband . 

4) allegations of dowry harassment has to be proved by wife 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
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First of all apply for bail before high court and get him enlarged on bail first.  The high court may consider granting bail after the sessions court dismissing it.
The supporting evidence i.e., talaknama will be in his favor to get bail. 
Rest other issues about the offences charged may be taken up during trial of the case. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
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A legally wedded husband is escaped from the purview of Rape. Even though Whoever voluntarily has carnal inter¬course 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. So apply for bail before the Honourable high court immediately 

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 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 sixteen years of age. 


In view of the Commission's conclusions regarding the purview of Section 377 IPC, the said section was clearly intended to punish certain forms of private sexual relations perceived as immoral.  Sexual penetration as penile/anal penetration, finger/vaginal and finger/anal penetration and object and vaginal penetration are most unnatural forms of perverted sexual behavior for which Section 377 provides stringent punishment.
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
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1. The talaq pronounced by your brother out of rage before the Police is not as per sharia hence is invalid,

2. Wife can certainly level the charge against husband u/s 376 and 377 of IPC,

3. It will be prudent on the part of your brother to settle the matter amicably with your wife.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
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you should file an application for medical test of your brother and sister in law in respect of offence under sec 377. if his wife has no injury on and around anus file  a case before the high court for quashing of the case, medical test is necessary in sodomy case u/s 377. in lack of medical evidence case cannot be registered. ig she has medical evidence then it is completely false so you should file a cross case against his wife and doctor because if there is injury after lapse of long time then it cannot be disappear immediately. 

make her medical evidence is your main weapon for attack and take bail from the high court.  
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
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