Procedural Bar On Cognizance Of Offences Related To Marriage Won't Apply If Serious Offences Like Rape Are Involved: Kerala High Court

The Kerala High Court has said that the procedural bar under Section 198(1) of the Criminal Procedure Code (CrPC) on taking cognizance of an offence related to marriage does not apply when a complaint includes serious criminal allegations like cheating and rape.Chapter XX of the IPC deals with “Offences Relating to Marriage”. These are sensitive offences where, Section 198(1) CrPC states that no Court shall take cognizance of an offence punishable under Chapter XX except upon a complaint made by some person aggrieved by the offence.The court was thus considering whether the bar under Section 198(1) of Cr.P.C would apply when a complaint is lodged before the Magistrate alleging offences under Chapter XX of the IPC along with cognizable offences which exclude Chapter XX of IPC. Relying on the Supreme Court's decision in Ushaben v. Kishorbhai Chunnilal Talpada & Ors. (2012), Justice Badharudeen, in his order noted that as per Section 198(1) CrPC cognizance of an offence punishable under Chapter XX of IPC is prohibited except upon a complaint made by some persons aggrieved by the offence. Notably in the present case the complainant had filed a complaint with the Magisterial Court alleging offences relating to marriage (Sections 493,494 and 495) as well as cheating and rape. The court said,"In Ushaben v. Kishorbhai Chunnilal Talpada & Ors. the Apex Court considered a case where police investigated a crime registered, alleging commission of offences punishable under Sections 498A and 494 of IPC and held that no fetters could be put on the police preventing them from investigating a complaint which would allege offences punishable under Section 498A and under Section 494 of IPC. Here the prosecution case is that the 2nd respondent/defacto complainant lodged a private complaint before the Additional Chief Judicial Magistrate Court, Thalassery, alleging commission of offences punishable under Sections 420(cheating), 493(Cohabitation caused by a man deceitfully inducing a belief of lawful marriage), 494 (Marrying again during lifetime of husband or wife), 495 (Same offence with concealment of former marriage from person with whom subsequent marriage is contracted) as well as 376(rape) of the IPC by the petitioner herein. That is to say, apart from offences coming under Chapter XX of IPC, other cognizable offences were also alleged in the complaint. Acting on the complaint, the learned Magistrate forwarded the same to the police for investigation. Thereafter, final report was filed and the court took cognizance of the offences". Rejecting the petitioner's contention that cognizance is illegal the court said, "Following the ratio in Ushaben, the contention raised by the learned counsel for the revision petitioner that the cognizance in this matter is illegal as the same violated the mandate of Section 198(1) CrPC is not sustainable.”The court said that when there is sexual intercourse between a male and female with the consent of female, no offence under Section 376 of the IPC would attract. However Explanation 2 to Section 375 IPC defines consent as an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. At the same time, consent is obtained under misconception of fact that the accused legally married the de facto complainant being a person suitable to marry her without having any previous marriage. "Here, the admitted case of the accused otherwise as borne out from the proceedings is that, the accused at the time of marrying the de facto complainant, was a person already married and had two children. As observed by the trial court, the accused wanted to have sexual intercourse with the de facto complainant on the premise of marriage by practising fraud, since he was very well aware of the fact that he would not get the consent of the de facto complainant for sexual intercourse without marrying her. It is true that, as argued by the learned senior counsel for the revision petitioner/petitioner, the de facto complainant had continued the relationship for a long period of 6 years starting from 1996. But, according to the de facto complainant, the said cohabitation and sexual intercourse are on the strong belief that the accused is the legally wedded husband of the de facto complainant," the court said. The high court said that the trial court's order observing that "prima facie the offences are made out", is justified. BackgroundThe accused, had moved the high court against dismissal of his plea seeking seeking discharge, arguing that the complaint included offences under Chapter XX and therefore, as per Section 198(1) CrPC, only a private complaint from the aggrieved woman could be the basis for action. It was argued that the offences under Chapter XX could not be investigated by the police and therefore, cognizance itself is illegal. It was argued that de facto...

Procedural Bar On Cognizance Of Offences Related To Marriage Won't Apply If Serious Offences Like Rape Are Involved: Kerala High Court

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