S.198B CrPC | Cognizance Of Rape U/S 376B IPC Can Be Taken Only Upon Complaint By Separated Wife, Not On Police Report: Kerala High Court

The Kerala High Court has recently quashed the criminal proceedings initiated against a man accused of raping his separated wife after noting that cognizance of offence under Section 376B IPC was not taken in accordance with Section 198B of the Code of Criminal Procedure.The court said that as per Section 198B CrPC, cognizance of offence under Section 376B IPC (Sexual intercourse by husband upon his wife during separation) can be taken only upon complaint by wife and it bars cognizance in any other manner. For context, under Section 198B, there is a bar on courts to take cognizance of offence punishable under Section 376B IPC where the persons are in a marital relationship and it can be done only upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.Justice G. Girish observed:“it is pertinent to note that, as per the provisions contained in Section 198B Cr.P.C, cognizance for the offence under Section 376B I.P.C could be taken by the Court concerned only upon a complaint filed by the wife. The aforesaid provision expressly bars taking cognizance of the aforesaid offence in any other manner. Thus, it is apparent that the learned Magistrate had taken cognizance of the offence under Section 376B I.P.C upon the final report filed by the Malappuram Police, against the legal embargo contained in Section 198B Cr.P.C. That being so, the prayer of the petitioner to quash the proceedings against him in respect of the aforesaid offence, is fully justified.”The petitioner in the case was accused of the offences under Section 376B I.P.C [Sexual intercourse by husband upon his wife during separation] and Section 31(1) of the Protection of Women from Domestic Violence Act [Penalty for breach of protection order by respondent]. He had pronounced talaq on the de facto complainant as per personal law and the alleged incident of sexual intercourse was committed before the talaq came into effect. It was also alleged that later, he forcefully expelled her from the marital house. Both the offences were registered in the same FIR and cognizance was taken by the Magistrate based on final report of police.The petitioner filed plea before the High Court challenging the proceedings against him. It was stated that the cognizance of the offence under Section 376B IPC was taken even though no complaint was given to the Magistrate, violating Section 198B CrPC. The Court agreed with the petitioner on this.Regarding the offence under the DV Act, the Court was of the opinion that since this was a separate offence that occurred at a later point in time, a separate FIR ought to have been registered.Thus, the Court allowed the plea and quashed the proceedings against the petitioner. However, it also made it clear that its order would not stand in the way of institution of prosecution proceedings against the petitioner in accordance with law.Case No: O.P. (Crl.) No. 284 of 2025Case Title: XXX v. State of Kerala and Ors.Citation: 2025 LiveLaw (Ker) 569Counsel for the petitioner: Thareeq Anver K., K.C. Khamarunnisa, K. Shamsudheen, Arun Chand, Rassal Janardhanan A., Govind G. Nair, Shinto Mathew AbrahamCounsel for the respondent: Pushpalatha M.K. (Sr. PP)Click to Read/Download Judgment

S.198B CrPC | Cognizance Of Rape U/S 376B IPC Can Be Taken Only Upon Complaint By Separated Wife, Not On Police Report: Kerala High Court

K. Salma Jennath

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S.198B CrPC | Cognizance Of Rape U/S 376B IPC Can Be Taken Only Upon Complaint By Separated Wife, Not On Police Report: Kerala High Court

K. Salma Jennath

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K. Salma Jennath

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