Rajasthan High Court – Jaipur
Gajendra Mourya Son Of Roopnar Mourya vs State Of Rajasthan on 30 March, 2026
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 4245/2021
Gajendra Mourya S/o Roopnar Mourya, aged about 22 Years, R/o
Raigaron Ka Mohallan, Ojda, Police Station, Harmara, Jaipur
(Rajasthan)
----Petitioner
Versus
1. State of Rajasthan, Through P.P.
2. Victim 'SK'
----Respondents
For Petitioner(s) : Mr.Rahul Sharma for
Mr.Rajneesh Gupta
For Respondent(s) : Mr.Vivek Choudhary, PP
Mr.Yunus Khan
JUSTICE ANOOP KUMAR DHAND
Order
30/03/2026
Reportable
1. By way of filing the instant criminal misc. petition, a prayer
has been made for quashing the impugned F.I.R. No.281/2021
registered at the Police Station Harmada, District Jaipur City
(West) for the offences punishable under Sections 376, 384, 420 &
120B IPC.
2. Learned counsel for the petitioner submits that the
prosecutrix ‘SK’ is a major lady, aged around 19 years at the time
of filing of this petition and her date of birth is 11.09.2002. She
along-with the petitioner submitted an application under the
provisions of the Special Marriage Act, 1954 (for short, ‘the Act of
1954’) for solemnizing their marriage before the Marriage Officer/
A.D.M. (IV), Jaipur, District Jaipur on 10.03.2021. Counsel submits
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that at the time of submitting the aforesaid application, the age of
the prosecutrix was 18 years and 5 months. Counsel further
submits that as per the procedure and provisions contained under
the Act of 1954, one month notice was issued to the family
members of the petitioner as well as the prosecutrix and
thereafter, they re-appeared before the Marriage Officer and
submitted their affidavits along-with affidavits of three witnesses.
Subsequently, their statements were recorded and after perusal of
their affidavits along-with affidavits of the three witnesses who
were present, their marriage was solemnized by the Marriage
Officer on 12.04.2021 and a Marriage Certificate in this regard
was also issued on the same day. Counsel submits that the factum
of marriage has not been disputed by the petitioner, but at the
later stage, the same was disputed by the respondent-
complainant. Hence, both of them approached the Family Court
No.1, Jaipur Metropolitan-I, Jaipur, where, the petitioner
submitted an application under Section 22 of the Act of 1954 for
restitution of conjugal rights, whereas, the respondent-
complainant/prosecutrix submitted an application under Section
25 of the Act of 1954 for annulment of the marriage.
3. Counsel submits that the aforementioned applications
submitted by the petitioner as well as by the prosecutrix were
jointly decided and rejected by the Court of Judge, Family Court
No.1, Jaipur Metropolitan-I, Jaipur vide order dated 15.07.2025,
against which both of them separately approached this Court by
way of filing two different civil miscellaneous appeals and the
same are lying pending before this Court for adjudication on
merits.
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4. Counsel submits that in the meantime, on 03.06.2021, i.e.,
after almost two months of their marriage, the instant impugned
F.I.R. has been lodged by the prosecutrix with vague allegations
stating therein that the petitioner has been committing rape upon
her for last more than one month and on 12.04.2021, i.e., on the
day of their marriage, rape was again committed upon her and
she was blackmailed to sign the marriage papers before the
Marriage Officer/ ADM (IV), Jaipur, District Jaipur. Counsel submits
that the aforesaid story is highly unbelievable and has been
created by the prosecutrix. Counsel further submits that the
prosecutrix is legally wedded wife of the petitioner, hence, under
these circumstances, the alleged offence is not made out against
the petitioner.
5. In support of his contention, learned counsel for the
petitioner has placed reliance upon the judgment passed by the
Hon’ble Apex Court in the case of Pramod Suryabhan Pawar
Vs. State of Maharashtra & Anr. reported in (2019) 9 SCC
608.
6. Counsel submits that in view of the submissions made
hereinabove, the impugned F.I.R. is liable to be quashed and set-
aside.
7. Per contra, learned Public Prosecutor as well as counsel
appearing on behalf of the complainant-respondent opposed the
arguments raised by counsel for the petitioner and submitted that
as per the allegations levelled in the impugned F.I.R., the
complainant-respondent was a minor at the time of solemnization
of the marriage under the Act of 1954 and rape was committed
upon her one month before the lodging of the impugned F.I.R. It
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has been further alleged that an obscene video of the prosecutrix
was recorded by the petitioner and in fact, marriage was not
solemnized between the parties with mutual consent, rather the
prosecutrix was forced to sign the marriage certificate before the
Marriage Officer/ ADM (IV), Jaipur, District Jaipur on 12.04.2021.
Counsel submits that the prosecutrix is not admitting the factum
of marriage, therefore, an application under Section 25 of the Act
of 1954 was submitted by her before the Family Court No.1, Jaipur
Metropolitan-I, Jaipur seeking annulment of the marriage. Counsel
submits that the allegations levelled in the impugned F.I.R. reveal
commission of a cognizable offence, hence, under these
circumstances, interference of this Court is not warranted and the
instant petition is liable to be rejected.
8. Heard and considered the submissions made at the Bar and
perused the material available on record.
9. Perusal of the record indicates that date of birth of the
prosecutrix is 11.09.2002 and she along-with the petitioner
approached the Marriage Officer/ A.D.M. (IV), Jaipur, District
Jaipur by way of filing an application under Section 5 of the Act of
1954 showing their intention to get married. The Marriage Officer,
after following the procedure and provisions contained under the
Act of 1954, issued one month notice to all the concerned parties
inviting their objections, if any, against the marriage of the
petitioner & the prosecutrix. When no objections were submitted
by anyone, the petitioner as well as the prosecutrix along-with
three witnesses appeared before the Marriage Office/ ADM (IV),
Jaipur, District Jaipur after completion of 30 days, i.e., on
12.04.2021, wherein their statements were recorded and their
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affidavits were also perused and after being satisfied from all four
corners, the Marriage Officer solemnized their marriage and issued
a Marriage Certificate in this regard on the same day, i.e., on
12.04.2021. Photographs have also been enclosed along-with the
instant petition, which indicate that their marriage was solemnized
with mutual consent. However, it appears that subsequently, the
prosecutrix has changed her mind and lodged the instant F.I.R.,
after a lapse of around two months from the date of solemnization
of their marriage, wherein the allegations of rape have been
levelled against the petitioner. Further allegations have been
levelled stating that the petitioner was sexually assaulting her
continuously for last more than one month.
10. The documents annexed with the instant petition further
indicate that the prosecutrix has submitted an application under
Section 25 of the Act of 1954 seeking annulment her marriage
with the petitioner before the Family Court on 28.04.2022 and in
the meanwhile, the petitioner has submitted an application under
Section 22 of the Act of 1954 on 07.07.2021 seeking restitution of
conjugal rights. The learned Judge, Family Court No.1, Jaipur
Metropolitan-I, Jaipur vide its judgment dated 15.07.2025 jointly
decided and rejected both the applications submitted by the
parties. Aggrieved by the aforesaid order, both the parties have
separately approached this Court by way of filing two different
misc. appeals and the said appeals are still lying pending for
adjudication on merits.
11. The main allegation levelled against the petitioner by the
prosecutrix is that the offence of ‘Rape’ was committed by the
petitioner upon her. The offence of rape is punishable under
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Section 376 IPC and the same has been defined under Section
375 IPC.
12. It is worthy here to quote the definition of “rape” as
prescribed under Section 375 of IPC, which reads 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 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. 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.”
13. The definition of “rape” was later amended by the Criminal
Law Amendment Act, 2013 (Act No.13 of 2013) and the amended
definition of “rape”, as defined under Section 375 of IPC reads as
under:-
“Rape.– A man is said to commit “rape” if he–
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(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 nonverbal
communication, communicates willingness to
participate in the specific sexual act:
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(8 of 13) [CRLMP-4245/2021]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.”
14. Upon perusal of the definition of the term ‘Rape’ under
Section 375 IPC, it is evident that the said offence has been
expansively defined under the IPC. As per this expansive
definition, sexual intercourse by a man with his own wife would
not constitute the offence of rape, if she is above 15 years of age.
The Hon’ble Apex Court in the case of Navtej Singh Johar Vs.
Union of India reported in (2018) 1 SCC 791 has held that in
the light of Exception 2 of Section 375 IPC, sexual intercourse or
sexual acts by a husband with his wife (not being a minor) do not
constitute rape, thereby rendering the aspect of consent within
marriage legally immaterial for the purpose of prosecuting such
acts as rape.
15. In the case of Kuldeep Singh Vs. State of Punjab & Ors.
while deciding SLP (Civil) No.13277 of 2023 vide judgment
dated 31.01.2025, the Hon’ble Apex Court has dealt with the
identical issue in Para Nos.6 to 16, which read as under :-
“6. In the meanwhile, the Respondent No.
3 on 01.09.2022 recorded a statement
under section 164 of the Cr.P.C, with the Ld.
JMFC raising allegations of rape against the
appellant and also alleged that the marriage
has been solemnised forcibly by the
appellant. It was further alleged that mother
and brother of the appellant had also
assisted the appellant in the commission of
said crimes. Accordingly, the names of
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(9 of 13) [CRLMP-4245/2021]also added to the FIR along with addition of
Sections 363, 120B and 376 of IPC.
7. Accordingly, the Special Investigation
Team3 consisting of Superintendent of
Police, Hoshiarpur, Deputy Superintendent of
Police-Crime against Women and Children,
Hoshiarpur and Deputy Superintendent of
Police-Sub Division City Hoshiarpur had
conducted investigation in the matter and
filed an inquiry report. In furtherance of the
inquiry report, the police filed the challan
dated 01.07.2023 under Section 173 of
Cr.P.C. which stated that from the
investigation conducted by SIT, allegations
levelled by the victim against Kuldeep Singh
regarding kidnapping and pressurizing her
formarriage have not been proved as it was
found that the victim has solemnised the
marriage with the appellant with her own
consent. It was also found that no role can
be attributed to the mother or brother of the
appellant and hence they were completely
exonerated as no evidence could be
collected against them. As such, Section 366
of IPC was deleted and only Sections 376
and 506 of IPC survived against the
appellant as per the chargesheet.
8. Thereafter, the appellant had preferred
CRM-M-No. 41161 of 2023 dated
18.08.2023 before the High Court seeking
quashing of FIR No. 148 of 2022 and all
consequential proceedings. The High Court,
videthe impugned order, had dismissed the
appellant’s petition while holding that the
petition lacked any merit and the matter
required evaluation of evidence and
adjudication by the Trial Court.
9. Aggrieved by the said order, the appellant
is before us.
10. Before moving forward, we find it
relevant to note here that neither
Respondent No. 2, i.e. the complainant nor
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despite sufficient service of notice.
11. We have heard the learned counsel for
the accusedappellant and Respondent No. 1-
State and also perused the material on
record.
12. It has been submitted by the appellant
that he is the legally wedded husband of
Respondent No. 3 and therefore no offence
under Section 376 of IPC is made out
against him since he is covered under
Exception No. 2 appended to Section 375 of
IPC. The appellant has also brought to our
notice the written statement dated
01.08.2023 filed by the Respondent No. 3 in
the matter of restitution of conjugal rights
and highlighted that she has nowhere made
any allegations pertaining to rape against
the appellant in the said written statement.
13. It would be relevant to refer to
Annexure P-3 which is an order passed by
Ld. Single Judge of the Punjab & Haryana
High Court in CRWP No. 5913 of 2022 on
21.06.2022 providing protection to the
petitioners therein being the appellant and
Respondent No. 3. The said petition had
been jointly filed by the appellant and
Respondent No. 3 seeking protection from
the family members of the Respondent No. 3
as she had married the appellant of her own
free will and volition against the wishes of
her family members. Moreover, it may also
be noted that in the reply filed by the
Respondent No. 3 to the appellant’s petition
for restitution of conjugal rights, she has not
made any allegation of rape or marriage by
force against the appellant. Further, the
Respondent No. 3 or for that matter
Respondent No. 2 despite service of notice,
have not come forward to dispute or deny
the abovefacts.
14. Importantly, it must be noted that the
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(11 of 13) [CRLMP-4245/2021]chargesheet, survives only to the extent of
allegations under Sections 376 and 506 of
IPC as it was established during the inquiry
that the victim had solemnised the marriage
with the appellant out of her own free will.
15. In this regard, it has been rightly
pointed out by the appellant that as per
Exception 2 under Section 375 of IPC,
sexual intercourse by a man with his own
wife cannot be termed as rape and, hence, a
charge under Section 376 of IPC cannot be
sustained against the appellant. Further, the
conduct of the Respondent No. 2 and 3 in
failing to enter appearance despite sufficient
notice is reflective of the fact that it is a
dead case where no purpose shall be served
in continuing the criminal proceedings
alleging charges of rape against the
appellant.
16. As such, given the facts and
circumstances of the case, it is evident that
no prima facie case constituting any offence
is made out against the appellant and he is
entitled to the relief sought.”
Hence, it is clear that if the accused is legally wedded
husband of the victim, the offence of rape punishable under
Section 376 IPC is not made out as he is covered under Exception
2 appended to Section 375 IPC.
16. It appears that the petitioner and the prosecutrix desired to
marry each other, however, their parents were not accepting their
matrimony because they were solemnizing an inter-caste
marriage. Therefore, the petitioner and prosecutrix while invoking
the process of solemnizing Court marriage under the Act of 1954.
Accordingly, applied for marriage before the Marriage Officer/ ADM
(IV), Jaipur, District Jaipur and thereafter, one month notice was
issued to all the concerned parties inviting their objections, if any,
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against their marriage. When no objection was received, their
marriage was solemnized by the Marriage Officer ADM (IV), Jaipur,
District Jaipur. Hence, it is clear that the prosecutrix has
solemnized marriage with the petitioner of her own wish and will,
and against the wish and will of her family members. Hence, no
prima facie case is made against the petitioner constituting any
offence.
17. Considering the overall facts and circumstances of the case
and looking to the fact that the prosecutrix is a major lady of the
age of above 18 years at the time of marriage and she herself has
solemnized marriage with the petitioner on 12.04.2021, lodging of
the impugned F.I.R. on subsequent date amounts to abuse of
process of law. Hence, the entire proceedings arising out of the
impugned F.I.R. stand quashed and set-aside.
18. In view of the discussions made hereinabove, this Court is of
the considered opinion that no prima facie case is made out
against the petitioner under Section 376 IPC as the prosecutrix
has attained the age of majority and is the legally wedded wife of
the petitioner. No offence of rape is made out against the legally
wedded husband such as the petitioner.
19. Accordingly, the instant criminal misc. petition stands
allowed. The proceedings arising out of the impugned F.I.R.
No.281/2021 registered at Police Station Harmada, District Jaipur
City (West) against the petitioner stand quashed and set-aside.
20. The stay application and all pending application(s), if any,
stand disposed of.
21. Before parting with this order, this Court observes that the
finding of fact recorded by this Court is confined to disposal of the
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instant petition and for quashing of the impugned F.I.R. and the
same would not have any bearing on the proceedings initiated by
the petitioner under Section 22 of the Act of 1954 as well by the
prosecutrix under Section 25 of the Act of 1954. The concerned
Court would decide the same on their merits independently, after
hearing the arguments raised by the respective parties.
(ANOOP KUMAR DHAND),J
Aayush Sharma /3
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