CrPC Section 198 — Prosecution for offences against marriage

Summary

Sub-section (1) says a court can take cognizance of an offence punishable under Chapter XX of the Indian Penal Code only on a complaint by a person aggrieved by the offence, subject to the following provisions.

Clause (a) of the proviso to sub-section (1) allows another person, with the court’s permission, to complain on behalf of the aggrieved person if that person is under eighteen, is described in the text as an idiot or a lunatic, cannot complain because of sickness or infirmity, or is a woman who, according to local customs and manners, ought not to be compelled to appear in public.

Clause (b) of the proviso to sub-section (1) allows a person authorised by the husband under sub-section (4) to complain on his behalf if he is serving in the Union’s Armed Forces and his Commanding Officer certifies that the conditions of his service prevent him from obtaining leave to complain in person.

Clause (c) of the proviso to sub-section (1) allows a complaint on behalf of a wife aggrieved by an offence punishable under section 494 or 495 of the Indian Penal Code to be made by her father, mother, brother, sister, son, daughter, or her father’s or mother’s brother or sister. Any other person related to her by blood, marriage or adoption may complain on her behalf with the court’s permission.

Sub-section (2) says that, for sub-section (1), only the woman’s husband is considered aggrieved by an offence punishable under section 497 or 498 of the Indian Penal Code. In his absence, a person who had care of the woman on his behalf when the offence was committed may complain on his behalf with the court’s permission.

Sub-section (3) applies where, under clause (a) of the proviso to sub-section (1), someone seeks permission to complain on behalf of a person under eighteen or a person described as a lunatic. If the person seeking permission has not been appointed or declared guardian of that person by a competent authority, and the court is satisfied that a guardian has been so appointed or declared, the court must notify that guardian and give them a reasonable opportunity to be heard before granting permission.

Sub-section (4) says the husband’s authorisation under clause (b) of the proviso to sub-section (1) must be in writing and signed or otherwise attested by him. It must state that he has been informed of the allegations on which the complaint will be based, be countersigned by his Commanding Officer, and be accompanied by that officer’s signed certificate stating that leave to complain in person cannot currently be granted to him.

Sub-section (5) says a document that purports to be such an authorisation and complies with sub-section (4), and a document that purports to be a certificate required by that sub-section, must be presumed genuine unless the contrary is proved and must be received in evidence.

Sub-section (6) says a court cannot take cognizance of an offence under section 376 of the Indian Penal Code consisting of sexual intercourse by a man with his own wife, where she is under eighteen, if more than one year has passed since the offence.

Sub-section (7) says this section applies to abetment of, or an attempt to commit, an offence in the same way as it applies to the offence.

Official Text

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under 1[section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister 2[, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under 3[eighteen years of age], if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence. 4

Sections referred to

• IPC §376 — Punishment for rape
• IPC §494 — Marrying again during lifetime of husband or wife
• IPC §495 — Same offence with concealment of former marriage from person with whom subsequent marriage is contracted
• IPC §497 — Adultery

Related Judgments

• URMILA DEVI vs YUDHVIR SINGH — Supreme Court of India (2013)
• A. SUBASH BABU vs STATE OF A.P.& ANR — Supreme Court of India (2011)
• INDEPENDENT THOUGHT vs UNION OF INDIA & ANR — Supreme Court of India (2017)
• MANOJ KUMAR TIWARI vs MANISH SISODIA & ORS — Supreme Court of India (2022)
• S. KHUSHBOO vs KANNIAMMAL AND ANR — Supreme Court of India (2010)

Old <-> New Code Mapping

• BNSS §219 — Prosecution for offences against marriage