Legal Provisions of Section 198 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Prosecution for offences against marriage:
This section also embodies an exception to the general rule that any person having knowledge of commission of an offence may set the law in motion by instituting a complaint of the offence. Sub-clause (1) of this section provides that no Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint by some person aggrieved by the offence. The reason being that the offences enumerated in this chapter relating to marriage are purely of a private character hence the section intends that strangers should not be allowed to intrude or interfere in the private life of persons.
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ADVERTISEMENTS:
The offences relating to marriage as contained in Chapter XX, IPC and enumerated in this section are:- (1) Deceitful cohabitation by man.(Section 493) (2) Bigamy (Section 494); (3) Bigamy with concealment of former marriage (Section 495). (4) Fraudulently going through marriage ceremony without lawful marriage (Section 496); Adultery (497); and (6) enticing etc. of a married women (Section 498).
The provisions of Section 198 also apply to abetment of or attempt to commit any of the above mentioned offences.
In the case of these offences, the complaint must be made by the person aggrieved, that is affected or injured by the offence alleged. Whether a person is aggrieved by any such offence or not, must be determined in each case according to the nature of the offence and the circumstances of the case.
ADVERTISEMENTS:
The grievance must be a legal grievance that law may appreciate. The Supreme Court, in V. Revathi v. Union of India, that in case of the offence of adultery or enticing a married woman no person other than the husband of the woman shall be deemed to be aggrieved person.
However, in the absence of the husband, some other person who has care of the woman on his behalf at the time of commission of such offence may, with the permission of the Court, make a complaint on his behalf.
Sub-section (3) provides that if the complaint is sought to be made on behalf of a person under 18 years of age or of a lunatic or an idiot or is incapable of making a complaint because of sickness or infirmity etc. some other person may, with the leave of the Court, make a complaint on behalf of that person. Where there is a guardian already appointed for a minor or lunatic, the Court should order notice to be sent to such guardian so as to give him a reasonable opportunity to be heard.
Provision (b) of sub-section (1) relates to the case of members of the Armed Forces and should be read with sub-section (4) of this section.
ADVERTISEMENTS:
Proviso (c) of Section 198 (1) provides that where the person aggrieved by an offence under Section 494 or 495 of IPC (Bigamy) 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 or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.
In the case of Raksha Ben v. State of Gujarat the High Court of Gujarat held that in case of bigamy against the wife, the complaint by the holder of attorney power of the husband was not entitled to take cognizance of such complaint as it was husband only, who is an aggrieved party in such a case.
The Supreme Court, in Ashwin Nandubhai v. State has held that where after filing a complaint charging the accused under Section 493 (deceitful co-habitation by man) and Section 496 (fraudulently going through marriage ceremony without lawful marriage) of IPC, the aggrieved spouse dies, her mother can be substituted to carry on the prosecution on behalf of the deceased.
As regards the offence of rape under Section 376, IPC, where such offence consists of sexual intercourse by a man with his wife who is under fifteen years of age, sub-section (6) of Section 198, Cr.P.C. does not put any restriction as to the person who can file a complaint. Therefore, in such a case, the complainant may or may not be an aggrieved person. Thus sub-section only prescribes a time-limit of one year for taking cognizance of any such offence.
Thus it would be seen that the complaint by an “aggrieved person” is a condition precedent for the jurisdiction of any Court to deal with the offences mentioned in this section i.e. Section 198, Cr. P.C. and judicial proceedings held in absence of such complaint shall be illegal.
[198A. Prosecution of offences under Section 498A of the Indian Penal Code.—No Court shall take cognizance of an offence punishable under Section 498A of the Indian Penal Code (45 of 1860), except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.]
Comment:
This new section has been inserted in the Code by the Criminal Law (Amendment) Act, 1983 consequent to addition of a new Section 498A in IPC which makes cruelty or harassment of women an offence punishable in law.
Under Section 198A, the father, mother, brother, sister and other near relatives of the woman who is or has been a victim of such cruelty or harassment are entitled to complain and launch prosecution against the person accused of an offence under Section 498A of IPC.