Gajendra Mourya Son Of Roopnar Mourya vs State Of Rajasthan on 30 March, 2026

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    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

    SPONSORED

    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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    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
    brother and mother of the appellant were

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    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
    Respondent No. 3, i.e. the victim has

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    entered appearance before this Court
    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
    case as of now, after the filing of

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    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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