Kerala High Court: The present petition was filed by the accused-husband under Article 227 of the Constitution for quashing the proceedings against him for allegedly raping his wife while they were separated, thereby committing offences under Section 376-B of the Penal Code, 1860 (‘IPC’) and Section 31(1) of the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’). A Single Judge Bench of G. Girish, J., quashed the proceedings initiated against the husband on the ground that the cognizance was based on police report and not the wife’s complaint, contravening the mandate of Section 198-B of the Criminal Procedure Code, 1973 (‘CrPC’).
Background:
The prosecution submitted that the accused was the husband of the de facto complainant (‘wife’). He had raped his wife on 16-12-2016, while they were separated, pursuant to a talaq executed on 02-11-2016. The wife was residing in the same house as the husband, as permitted by the order passed by the Judicial First-Class Magistrate, Malappuram, in a domestic violence complaint preferred by her. The prosecution alleged that on 25-12-2016, the husband had expelled the wife from his house, thereby violating the Magistrate’s order.
However, the husband contended that the prosecution against him was not maintainable in view of the bar contained under Section 198-B CrPC. He further stated that the prosecution for the offence under Section 31(1) of the DV Act before the Sessions Court was also not maintainable in view of the provisions contained under Section 26(b) CrPC.
Analysis and Decision:
The Court opined that for the offence under Section 376-B IPC to be attracted, the marital status of the victim as the wife of the accused must be subsisting at the time when the offence was committed. The Court noted that in the present case, the accused had pronounced talaq on his wife and communicated the same to the Juma Masjid Committee concerned on 02-11-2016.
The Court observed that according to the personal law of the parties, divorce by way of talaq came into effect only on the expiry of 90 days from the date of pronouncement of talaq, therefore, the marital status of the de facto complainant was as the wife of the accused on 16-12-2016, when she was allegedly subjected to sexual intercourse against her consent by her husband.
The Court noted that as per Section 198-B CrPC, the cognizance of an offence under Section 376-B IPC could only be taken by the Court concerned upon a complaint filed by the wife, and by no other manner. The Court observed that the accused’s prayer to quash the proceedings was justified as the Magistrate had taken cognizance of the offence under Section 376-B IPC upon the final report filed by the Malappuram Police, against the legal embargo contained in Section 198-B CrPC.
The Court further observed that for the offence under Section 31(1) of the DV Act, the accused allegedly committed the offence by forcefully expelling his wife from his house on 25-12-2016, which was nine days after his alleged act of rape on 16-12-2016. Since the act of expulsion was a distinct offence, which took place later, the Investigating Agency was wrong in registering the same FIR in respect of both the offences. The Court further held that the offence under Section 31(1) of the DV Act was a matter to be dealt with by the Judicial First-Class Magistrate concerned and therefore, the prosecution initiated against the accused in respect of the said offence was also liable to be quashed.
Consequently, the Court, while allowing the petition, quashed the proceedings against the accused under both the offences on the files of the Fast Track Special Court, Manjeri and clarified that it would in no way preclude the institution of prosecution proceedings against him in conformity with the procedures prescribed by law.
[X v. State of Kerala, 2025 SCC OnLine Ker 7738, decided on 12-09-2025]
Advocates who appeared in this case:
For the Accused: Thareeq Anver, K.C. Khamarunnisa, K. Shamsudheen, Arun Chand, Rassal Janardhanan A., Govind G. Nair, Shinto Mathew Abraham
For the Respondents: Pushpalatha M.K., Sr. Public Prosecutor.
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