ORDER : 1. The prayer in the above Crl.M.C filed under Sec.482 of the Cr. PC is as follows:- “.......to quash Anx.A2 FIR and all further proceedings in crime No.442/2018 dated 30-03-2018 of Vellarada Police Station, Thiruvananthapuram, on the basis of amicable settlement of the dispute emanating from matrimonial discord.” 2. Heard Sri.Ayyappan Sankar, the learned counsel appearing for the petitioners/accused and Sri.Santhosh Peter, learned Public Prosecutor appearing for respondent Nos.1 & 2. Though respondent No.3 (lady defacto complainant) has been duly served by special messenger, there is no appearance for the said party. 3. The petitioners herein are brothers and 1st the petitioner/A1 is the husband of the 3rd respondent (lady defacto complainant). The petitioners have been arrayed as accused in the impugned Anx.A2 crime No.442/2018 of Vellarada Police Station, Thiruvananthapuram, for offences punishable under Secs.323, 354, 377 and 34 of the Indian Penal Code, on the basis of first information statement given by the 3rd respondent (lady defacto complainant) on 30-03-2018 at about 9.00 a.m, in respect of the alleged incidents happened for the period from December 2015 onwards. 4. The allegation made by the 3rd respondent (lady defacto complainant) in Anx.A2 FIS is to the effect that her marriage with the 1st petitioner herein was solemnized on 13-01-2014 and thereafter, the 1st petitioner has forcibly made her to undergo oral sex and such other activities and that thereby he has committed the offence of forcible carnal intercourse against the order of nature as per Sec.377 of the IPC. Further that he has assaulted her, etc., and that the 2nd petitioner (A-2), who is the brother of A-1, used to occasionally touch her breast while taking his child and he has committed the offence as per Sec.354 of the IPC (violating the modesty of the woman). At the outset, it is to be noted that the marriage between the parties has been solemnized as early as on 13-01-2014. It appears that a series of litigative proceedings have been initiated by the 3rd respondent by filing applications as OP No.696/2016 before the Family Court, Thiruvananthapuram, M.C.No.100/2016 before the Judicial First Class Magistrate Court-III, Neyyanttinkara under Sec.12 of the Domestic Violence Act, etc,. It appears that a series of litigative proceedings have been initiated by the 3rd respondent by filing applications as OP No.696/2016 before the Family Court, Thiruvananthapuram, M.C.No.100/2016 before the Judicial First Class Magistrate Court-III, Neyyanttinkara under Sec.12 of the Domestic Violence Act, etc,. In all those litigative proceedings initiated by the 3rd respondent (lady defacto complainant), she has not made any whisper of allegations, even remotely, regarding the alleged oral sex, which was compelled to be undergone by her at the instance of the 1st petitioner herein, who is her husband. The incidents are said to have happened sometime in December 2015. Whereas the instant Anx.A2 FIS has been made as late as on 30-03-2018, which is after the expiry of the two and half long years. No credible explanation whatsoever has been offered by the prosecution for explaining the long delay in the initiation of the instant case. 5. It is by now too well settled by a series of the rulings of the Apex Court in various decisions as in Thulia Kali v. State of Tamil Nadu ( AIR 1973 SC 501 ), State of Andhra Pradesh v. M.Madhusudhan Rao [ (2008) 15 SCC 582 ] etc., that delay in lodging the FIR, more often than not results in embellishment and exaggeration, which is a creation of an afterthought and a delayed report, not only gets bereft of the advantage of spontaneity, but the danger of the introduction of a coloured version, an exaggerated account of incident or a concocted story as a result of deliberations and consultations, also creeps in, thus casting a very serious doubt on its veracity. Therefore, it has been held that it is highly essential that the delay in lodging the FIR should be duly and satisfactorily explained by the prosecution. Resultantly, when the substratum of the prosecution case itself is found to be unreliable, prosecution case has to be rejected in its entirety, etc. In the instant case there is, not only delay of more than two and half long years, but also the crucial fact that the 3rd respondent has not chosen to make any of these allegations, even remotely in her various petitions filed by her before the Family Court as mentioned herein above. In the instant case there is, not only delay of more than two and half long years, but also the crucial fact that the 3rd respondent has not chosen to make any of these allegations, even remotely in her various petitions filed by her before the Family Court as mentioned herein above. O.P No.696/2016 has been filed by the 3rd respondent before the Family Court, Thiruvananthapuram on 02-04-2016 and M.C No.100/2016 has been filed by her before the Judicial First Class Magistrate Court-III, Neyyattinkara under the Domestic Violence Act on 29-12-2016, whereas the instant Anx.2 FIS has been filed by her on 30-03-2018, wherein alone she makes these allegations for the first time. Of course, the petitioners have made a submission that the entire disputes between the petitioners and the 3rd respondent have now been resolved and that Anx.A4 is the affidavit filed by her regarding the factum of the settlement. But now it is well settled by a series of rulings as in Shimbhu & Anr. v. State of Haryana [ 2014 (13) SCC 318 ], Parbatbhai Aahir v. State of Gujarat [ (2017) 9 SCC 641 ], Anita Maria Dias v. State of Maharashtra [ (2018) 3 SCC 290 ], Sebastian @ Solly v. State of Kerala [ 2015 (1) KLJ 384 , etc.}. that serious offences as the one contained Sec.376 of the IPC etc., may not be amenable for quashment merely on the ground of settlement between the parties. The said dictum laid down by the Apex Court for offences as in Sec.376 of the IPC etc., would also apply with equal force and vigour in the case of offence as per Sec.377 of the IPC. Therefore the factum of settlement between the parties may not be very relevant and germane for considering the plea for quashment. But in the instant case, it has to be noted that the incidents are said to have happened for the period from December, 2015 onwards. Sec.377 of IPC deals with unnatural offences and it is stipulated therein that 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 the imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine etc,. Sec.377 of IPC deals with unnatural offences and it is stipulated therein that 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 the imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine etc,. For an offence as per Sec.377 of the IPC, the assailant could either be a man or woman and the victim could be a man, woman or any animal. It has been held by this Court in the celebrated case in State of Kerala v. Kundumkara Govindan ( 1968 KLJ 485 ) as well as the decisions of the Apex Court in Navtej Singh Johar & others v. Union of India [ (2018) 10 SCC 1 ] that carnal intercourse against the order of nature would involve acts of penetrative anal sexual intercourse, or any intercourse of penetration by which there is a process of enveloping of the visiting organ by the visited organ and that even placing the male organ between the thighs of the victim could constitute the offence as per Sec.377 of the IPC. This Court has also observed that oral sex like Fellatio, Cunnilingus, etc would also come within the broad ambit of carnal intercourse against the order of nature etc,. Section 375 of the IPC till it was amended with effect from 03-02-2013, has conceived only of a situation where the assailant is male and the victim is necessarily a woman and it presupposes penetrative sexual intercourse without the consent of the victim, subject to the exemption that where the victim has not completed the age of 16, the consent is immaterial. The said definition of rape as per Sec.375 of the IPC has undergone a sea change after the amendment introduced in Sec.375 with effect from 03-02-2013. Sec.375 of the IPC dealing with rape would now provide as follows, with effect from 03-02-2013. The said definition of rape as per Sec.375 of the IPC has undergone a sea change after the amendment introduced in Sec.375 with effect from 03-02-2013. Sec.375 of the IPC dealing with rape would now provide as follows, with effect from 03-02-2013. “Sec. 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. 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: 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.” 6. A reading of Sec.375 as per the amended process would make it clear that forcible acts of oral sex that may be done by a male accused on a female victim would come now within the ambit of Sec.375 of the IPC with effect from 03-02-2013. Therefore, where the alleged acts of oral sex are said to have been committed by a male accused on a female victim if allegedly done on or after 03-02-2013, then it would come within the ambit of Sec.375 of the IPC and not within Sec.377 of the IPC. Exception No.2 of Sec.375 stipulates that sexual intercourse or sexual acts by a man with is own wife, the wife not being under 15 years of age, is not rape. Of course, the Apex Court has declared and held in the celebrated decision in Independent Thought v. Union of India & another [ 2017(10) SCC 800 ]., that the said outer age limit of 15 contained in Exception No.2 of Sec.375 of the IPC will stand enhanced as 18 years of age in view of the provisions contained in the POCSO Act and the amended provisions of the IPC and that the said judgment will be applicable only on a prospective basis from the date of the said judgment. The abovesaid dictum laid down by this Court in State of Kerala v. Kundumkara Govindan ( 1968 KLJ 485 ) has been affirmed by the Constitution Bench of the Apex Court in the celebrated case in Navtej Singh Johar & others v. Union of India [ (2018) 10 SCC 1 ]. The abovesaid dictum laid down by this Court in State of Kerala v. Kundumkara Govindan ( 1968 KLJ 485 ) has been affirmed by the Constitution Bench of the Apex Court in the celebrated case in Navtej Singh Johar & others v. Union of India [ (2018) 10 SCC 1 ]. The upshot of the above discussion is that as the act of oral sex which is said to have been forcibly done by the male accused on the female victim on or after 03-02-2013, it will come within the ambit of Sec.375 of the IPC and at the same time if the male accused is the husband of the female victim at the time of alleged acts, then it would also get the protection under Exception No.2 of Sec.375 of the IPC. Suffice to say that even the admitted allegations in the instant crime will not constitute an offence inasmuch as it is saved by Exception No.2 of IPC. 7. The allegation raised against the 2nd petitioner (A-2), who is the brother of the A1, is that at times, he used to touch the breast of the 3rd respondent when he used to take his child, etc,. Evaluating the said allegations in view of the long and unexplained delay, this Court has no hesitation to hold that the said allegations in the impugned criminal proceedings is a sheer abuse of the process of the Court. That apart, the factum of settlement should certainly be taken into account by this Court for offences as per Sec.354 of the IPC. In the light of these aspects, this Court is inclined to take the view that in view of the long and unexplained delay in the initiation of very crime as well as the lack of credibility and believability of the story of the prosecutrix person inasmuch as she has not chosen to make any of these allegations in the proceedings that she had initiated before the Family Court at the earlier point of time and also in view of the abovesaid aspects flowing from Exception No.2 of Sec.375 of the IPC etc,. this Court is inclined to take the view that the very inception and continuance of the impugned criminal proceedings is nothing but a sheer abuse of the process of the Court and is liable for interdiction. this Court is inclined to take the view that the very inception and continuance of the impugned criminal proceedings is nothing but a sheer abuse of the process of the Court and is liable for interdiction. Moreover, it is stated that now the spouses have decided to separate their part their ways as can be seen from Anx.3 affidavit. In the light of these aspects, it is ordered that the impugned Anx.A2 FIR in crime No.442/2018 of Vellarada Police Station, Thiruvananthapuram initiated against the petitioners/ accused and all further proceedings emanating therefrom against the accused persons will stand quashed. The petitioners will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions the above Crl. M.C. will stand disposed of.