Kerala High Court | Cognizance of Section 376B IPC Offence Valid Only on Wife’s Complaint Under Section 198B CrPC | Proceedings Based on Police Report Quashed Along With DV Act Charge
Isabella Mariam
The High Court of Kerala Single Bench of Justice G. Girish set aside criminal proceedings against a man accused under Section 376B of the Indian Penal Code and Section 31(1) of the Protection of Women from Domestic Violence Act. The Court recorded that cognizance of an offence under Section 376B IPC, which concerns sexual intercourse by a husband with his wife during separation, is permissible only upon a complaint filed by the wife under Section 198B of the Code of Criminal Procedure, and cannot be based on a police report. Proceedings under Section 31(1) DV Act were also quashed.
The case originated from a petition filed under Article 227 of the Constitution of India by the accused pending before the Fast Track Special Court, Manjeri. The petitioner sought to quash proceedings arising from Crime No.763/2016 of Malappuram Police Station.
The prosecution alleged that the petitioner, who is the husband of the de facto complainant, committed rape on 16.12.2016 while the couple were living separately after a talaq pronounced on 02.11.2016. The de facto complainant was residing in the petitioner’s house pursuant to an order of the Judicial First Class Magistrate, Malappuram, in proceedings under the Protection of Women from Domestic Violence Act. The prosecution further stated that on 25.12.2016, the petitioner expelled the de facto complainant from the house in violation of that order.
On these allegations, the petitioner was charged with offences under Section 376B IPC and Section 31(1) of the Protection of Women from Domestic Violence Act. The petitioner contended that the prosecution was barred under Section 198B CrPC, as cognizance of Section 376B IPC can only be taken on a complaint by the wife. It was also contended that the charge under Section 31(1) of the Act could only be dealt with by the Magistrate, not the Sessions Court
Justice G. Girish stated that “the offence under Section 376B I.P.C is attracted when it is shown that the offender had committed rape upon his wife while they were living separately under a decree of separation or otherwise.” The Court recorded that the marital status of the complainant continued as wife on 16.12.2016, as “the divorce by way of talaq would come into effect only on expiry of 90 days from the date of pronouncement of talaq.”
It was noted that cognizance was barred by Section 198B CrPC: “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.” The Court recorded that the Magistrate had taken cognizance based on a police report, contrary to the statute.
On the allegation under Section 31(1) DV Act, the Court stated: “Since the aforesaid act of expulsion of the de facto complainant from the matrimonial home is a distinct offence, which took place at a later point of time, the Investigating Agency had apparently gone wrong in registering the same F.I.R in respect of the aforesaid two offences.” It further recorded that the offence should be dealt with by the Magistrate
It stated: “In the result, the petition stands allowed as follows: (1) The proceedings against the petitioner/accused in S.C No.826/2017 on the files of the Fast Track Special Court, Manjeri, which arose out of Crime No.763/2016 of Malappuram Police Station, are hereby quashed.”
“It is made clear that this order would in no way preclude the institution of prosecution proceedings against the petitioner in conformity with the procedures prescribed by law.”
Advocates Representing the Parties
For the Petitioner: Shri. Thareeq Anver, Smt. K.C. Khamarunnisa, Shri. K. Shamsudheen, Shri. Arun Chand, Shri. Rassal Janardhanan A., Shri. Govind G. Nair, Shri. Shinto Mathew Abraham
For the Respondents: Smt. Pushpalatha M.K., Senior Public Prosecutor
Case Title: XXXX v State of Kerala and Ors.
Neutral Citation: 2025:KER:67386
Case Number: O.P. (Crl) No. 284 of 2025
Bench: Justice G. Girish
