Legal provisions regarding prosecution for offences against marriage under section 198 of the Code of Criminal Procedure, 1973.
Section 198(1) of the Code of Criminal Procedure provides that no Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code which relates to six offences against marriage, namely, deceitful cohabitation by man, bigamy, bigamy with concealment of former marriage, fraudulently by going through marriage ceremony without lawful marriage, adultery, enticing, etc. of a married woman except upon a complaint by some person aggrieved by the offence. As per sub-section (7) of Section 198 of the Code, the above rule also applies in respect of the abetment of or attempt to commit any of the offences mentioned therein.
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The object of Section 198(1) of the Code is to prevent strangers from interfering in family life when the aggrieved family members themselves are unwilling to agitate against the alleged wrong.
According to Section 198(2) of the Code of Criminal Procedure, no person other than the husband of the woman shall be deemed to be aggrieved by any offence of adultery punishable under Section 497 and any offence enticing, etc., a married woman punishable under Section 498 of the Indian Penal* Code. However, 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 behalf of the husband.
In special cases the following persons may make complaint in respect of offences against marriage punishable under Chapter XX of the Indian Penal Code in the circumstances mentioned below:
(a) As per proviso (a) to Section 198(1) of the Code, where the aggrieved person is under the age of 18 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. According to Section 198(3) of the Code, in order to safeguard the rights of the legal guardians in such situations, it has been provided that when in such a case, the complaint is sought to be made on behalf of a person under the age of 18 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.
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(b) As per proviso (b) to Section 198(1) of the Code of Criminal Procedure, where the aggrieved person is the husband and he is serving in 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 authorized by the husband in accordance with the provisions of sub-section (4) of Section 198 of the Code may make a complaint on his behalf.
As per Section 198(4) of the Code, the authorization referred to in clause (b) of the proviso to sub-section (1) of Section 198 of the Code, 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.
According to sub-section (5) of Section 198 of the Code, any document purporting to be such an authorization 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.
(c) As per proviso (c) to Section 198(1) of the Code of Criminal Procedure, 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.
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Prosecution of husband for rape:
According to Section 198(b) of the Code of Criminal Procedure, no court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his own wife, the wife being under 15 years of age, if more than one year has elapsed from the date of the commission of the offence.
Prosecution of offences or subjecting woman to cruelty by husband or the relative of the husband of a woman under Section 498-A of the Indian Penal Code:
Section 198-A of the Code of Criminal Procedure provides that no Court shall take cognizance of an offence punishable under Section 498-A of the Indian Penal Code 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.
Section 498-A of the Indian Penal Code lays down that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty, shall be punishable with imprisonment extending to three years and fine.