Section 198 CrPC: Prosecution for Offences Against Marriage
Section 198 of the Code of Criminal Procedure, 1973 prescribed a special rule for taking cognizance of offences against marriage under Chapter XX of the Indian Penal Code, 1860. As a general rule, a Court could take cognizance only on a complaint made by a person aggrieved by the offence, subject to the exceptions and procedural safeguards stated in the section.
Meaning and scope of Section 198 CrPC
The expression "person aggrieved" is central to Section 198. The provision restricted who could set the criminal process in motion for specified matrimonial offences. It also permitted certain relatives or authorised persons to complain in defined circumstances, including where the aggrieved person was a minor, unable to complain because of sickness or infirmity, or where a husband serving in the Armed Forces could not obtain leave.
Chapter XX of the IPC dealt with offences relating to marriage, including offences such as deceitfully inducing a belief of lawful marriage, bigamy, concealment of a former marriage, and certain other matrimonial offences. Section 198 was therefore a condition governing cognizance, meaning the Court's judicial notice of an alleged offence for the purpose of proceeding according to law.
Text of Section 198 CrPC
198. Prosecution for offences against marriage.
(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 sub-section (4) may make a complaint on his behalf;
(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code 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.
(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) Where a complaint under clause (a) of the proviso to sub-section (1) is sought to be made for a minor or a person described in the provision by someone who has not been appointed or declared guardian by a competent authority, and the Court is satisfied that such a guardian exists, notice must be given to that guardian and a reasonable opportunity of being heard must be provided before leave is granted.
(4) The authorisation referred to in clause (b) of the proviso to sub-section (1) must be in writing, signed or otherwise attested by the husband, state that he has been informed of the allegations on which the complaint is founded, be countersigned by his Commanding Officer, and be accompanied by that Officer's certificate that leave of absence for making the complaint personally cannot then be granted.
(5) A document purporting to be such an authorisation and complying with sub-section (4), and a document purporting to be the required certificate, shall be presumed genuine unless the contrary is proved and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 IPC, where the offence consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of commission of the offence.
(7) The provisions of this section apply to abetment of, or attempt to commit, an offence in the same manner as they apply to the offence.
Editorial note: The statutory wording above is presented for understanding the pre-BNSS provision. Some expressions in the historical text are outdated, and constitutional decisions affected the operation of provisions referred to in Section 198.
Who could make a complaint under Section 198?
The ordinary rule was that the complaint had to come from the person aggrieved. The provisos created carefully defined exceptions. For offences under IPC sections 494 and 495, where the wife was the aggrieved person, specified close relatives could complain on her behalf, and another relative by blood, marriage or adoption could do so with the leave of the Court.
For a husband serving in the Armed Forces who could not obtain leave, another person could act only through the written authorisation and Commanding Officer certification required by sub-section (4). Sub-section (5) supplied an evidentiary presumption of genuineness for documents complying with those requirements.
Important legal developments before BNSS
Section 497 IPC and adultery
Although Section 198(2) expressly referred to IPC section 497, the Supreme Court in Joseph Shine v. Union of India declared the adultery offence in section 497 IPC unconstitutional in 2018. Consequently, the reference to section 497 in the historical text of Section 198 could not continue to operate as a basis for criminal prosecution for adultery.
Minor wife and Section 376 IPC
Section 198(6) contained a special cognizance rule concerning section 376 IPC and a wife below eighteen years. In Independent Thought v. Union of India, the Supreme Court read down Exception 2 to section 375 IPC so that sexual intercourse or sexual acts by a man with his own wife, where the wife is below eighteen years, would not be protected by the marital exception. The historical text of Section 198 should therefore be read together with that constitutional interpretation.
Related CrPC provisions
Section 198 formed part of Chapter XIV, "Conditions Requisite for Initiation of Proceedings". Related provisions include Sections 190 to 192 CrPC on cognizance and making over of cases, Section 196 CrPC, Section 197 CrPC, and Section 199 CrPC on prosecution for defamation.