Thangamani vs State Of Kerala II (2006) DMC 222, 2006
(1) KLT 110
Only
upon a complaint made by “some person aggrieved” the Court can take cognizance
of the offence. Key word “some person aggrieved” is qualified by proviso to S.
198(1) CrPC.
Section 198: Prosecutions for offences against
marriages.--
(1) No Court shall take cognizance of an offence
punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a
complaint made by some person aggrieved by the offence:
Provided that-
(a) xxx XX xxx
(b) xxx XX xxx
(c) where the person aggrieved by an offence
punishable under Section 494 or Section 495 of the Indian Penal Code (45 of
1860) 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.
If the person aggrieved of offence under Section 494 IPC is
the wife, the statute recognises certain close relatives stated therein as “some
person aggrieved” who can file a complaint on 'on her behalf.
A look at proviso (c) will show that the statute has made a special provision for the wife in case of two important matrimonial offences falling under S. 494 and S. 495 of IPC only. Statutory language lays emphasis on the words “on behalf of” and has made an exhaustive list of the category of persons qualified by “some aggrieved person” of S. 198 (1) CrPC. Kerala High Court gave a broader field to the same holding that the person so listed need not necessarily file the complaint “on behalf of” the aggrieved wife, but can do so even in his individual capacity.
In Thangamani(supra), question arose whether the
complaint ought to be filed only “on her behalf” and not on their own behalf. Referring to the dictionary meaning of “some”,
High Court of Kerala held any person who is a member of the group of
"aggrieved persons" can file complaints for offences falling under S. 198 CrPC.
The Ld. Judge held “'some person aggrieved'
appearing in Section 198 of the Code are used to include also, persons other
than the spouses” and therefore the son of the aggrieved wife can make the
complaint on his own behalf, in his individual capacity as a person aggrieved
by offence of bigamy. There is no bar in the court taking cognizance of such
offence on a complaint filed by him, individually.”
The court reasoned as under:
“8. The general rule in criminal law is that any
person, whether aggrieved or not, can set law in motion. Section 198(1) of the
Code only carves out an exception to that rule and restricts filing of
complaints in matrimonial offences by any person other than those who are
aggrieved by such offences. But, that does not mean that the spouses alone are
the aggrieved. The section does not create any bar in certain aggrieved persons
filing the complaint in matrimonial offences. If spouses alone are intended to
be the persons aggrieved, (who can file complaints in offences against
marriage) necessarily the expression 'some' in Sub-section (1) to Section 198
of the Code was unnecessary. It was enough if some other expression such as,
'spouses aggrieved', 'either of the persons aggrieved' etc. are used.”
Whether the father of the aggrieved party can
file a complaint for the offence under Section 494, Indian Penal Code. Whether
'on her behalf’ would mean the express consent by the party aggrieved?
In Dinesh Kumar And Ors. vs Rasik Bihari Joshi
And Anr 1999 (2) MPLJ 88 http://indiankanoon.org/doc/1078057/
Madhya Pradesh High Court held :
The language of this clause is clear that where
the person aggrieved by the offence punishable under Section 494 or 495, 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 person related to her by blood,
marriage or adoption. By the Amending Act, the father is empowered to file
complaint on behalf of the wife.
7. …..The words used is "complaint may be
filed on her behalf by her father". Therefore, any complaint made by the
father shall be deemed to be proper unless it is established by the defence
that the complaint was without consent of the aggrieved party i.e. the wife.
8. The consent is to be inferred from the facts
of each case. Consent may be express or implied.
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