Cognizance of Rape

Source: Kerala High Court 

Why in News?

Recently, Justice G. Girish quashed criminal proceedings against a man accused under Section 376B of the Indian Penal Code, 1860 (IPC) (sexual intercourse by husband during separation), holding that as per Section 198B CrPC, cognizance can only be taken on a complaint filed by the wife and not on a police report. The Court found the Magistrate had acted contrary to this legal mandate. 

• The Kerala High Court held this in the matter of XXX v. State of Kerala and Ors.(2025).  

What was the Background of XXX v. State of Kerala and Ors. (2025) Case? 

• The petitioner and de facto complainant were legally married under personal law. 
• The petitioner pronounced talaq upon the de facto complainant and communicated the same to the Juma Masjid Committee on 02.11.2016. 
• Following the talaq pronouncement, the parties were living under separation, though the divorce had not yet come into legal effect as per personal law requirements. 
• The de facto complainant had filed a domestic violence complaint before the Judicial First Class Magistrate Court, Malappuram. 
• By virtue of the Magistrate's order in the domestic violence proceedings, the de facto complainant was permitted to reside in the same house as the petitioner. 
• On 16.12.2016, while the parties were living under separation but still legally married, the petitioner allegedly committed sexual intercourse against the consent of the de facto complainant. 
• Subsequently, on 25.12.2016, the petitioner allegedly expelled the de facto complainant from the matrimonial house in violation of the Magistrate's order. 
• The Malappuram Police registered Crime No. 763/2016 covering both incidents in a single FIR. 
• The petitioner was charged with offences under Section 376B of the Indian Penal Code (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). 
• The Magistrate took cognizance of both offences based on the final report submitted by the police. 
• The case was committed to the Fast Track Special Court, Manjeri as S.C No. 826/2017. 
• The petitioner challenged the proceedings by filing a petition under Article 227 of the Constitution of India before the Kerala High Court.

What were the Court’s Observations?

• The Court observed that Section 376B of the Indian Penal Code is attracted when an offender commits rape upon his wife while they are living separately under a decree of separation or otherwise. 
• The Court noted that for the application of Section 376B IPC, the marital status of the victim as the wife of the accused must be subsisting at the time when the offence is committed. 
• The Court observed that under the personal law applicable to the parties, divorce by way of talaq comes into effect only upon expiry of 90 days from the date of pronouncement of talaq. 
• The Court found that the marital status of the de facto complainant as the wife of the petitioner was subsisting on 16.12.2016, when the alleged sexual intercourse took place. 
• The Court emphasized that Section 198B of the Code of Criminal Procedure expressly provides that cognizance of offence under Section 376B IPC can be taken by the Court only upon a complaint filed by the wife. 
• The Court observed that Section 198B CrPC creates a legal embargo and expressly bars taking cognizance of offence under Section 376B IPC in any manner other than upon a complaint by the wife. 
• The Court found that the learned Magistrate had erroneously taken cognizance of the offence under Section 376B IPC based on the final report filed by the police, which violated the mandatory requirement under Section 198B CrPC. 
• Regarding the offence under Section 31(1) of the Protection of Women from Domestic Violence Act, the Court observed that the alleged expulsion of the complainant occurred on 25.12.2016, which was nine days after the alleged rape incident. 
• The Court noted that the act of expulsion from the matrimonial home constituted a distinct offence that took place at a later point in time. 
• The Court observed that the Investigating Agency had committed an error by registering both offences in the same FIR, given their distinct nature and different timelines. 
• The Court agreed with the petitioner's contention that offences under Section 31(1) of the Protection of Women from Domestic Violence Act should be dealt with by the Judicial First Class Magistrate. 
• The Court clarified that while quashing the current proceedings, this order would not preclude the institution of prosecution proceedings against the petitioner in conformity with the procedures prescribed by law. 

What are the Legal Provisions? 

• Section 198B of the Code of Criminal Procedure, 1973: 
  • No Court shall take cognizance of an offence punishable under Section 376B of the Indian Penal Code where the persons are in a marital relationship. 
  • Cognizance can only be taken upon prima facie satisfaction of the facts which constitute the offence. 
  • Such cognizance is permissible only upon a complaint having been filed or made by the wife against the husband. 
  • This provision creates an absolute bar against taking cognizance through any other means including police final report. 
  • The statutory bar under Section 198B CrPC is mandatory and cannot be bypassed by courts. 
  • Police investigation and final report cannot substitute the requirement of wife's complaint for taking cognizance. 
  • The legislative intent is to protect the sanctity of marriage while ensuring wife's autonomy in pursuing criminal remedies. 
  • Cognizance through police challan or final report in marital rape cases under Section 376B IPC is legally impermissible.
• Section 376B of the Indian Penal Code, 1860: 
  • This section deals with sexual intercourse by husband upon his wife during separation. 
  • The offence is attracted when the husband commits rape upon his wife while they are living separately under a decree of separation or otherwise. 
  • The marital status of the victim as the wife of the accused must be subsisting at the time of commission of the offence.