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Judges : K.HEMA
S.Thangamani - Appellant
Versus
State of Kerala, Represented by Public Prosecutor - Respondent
Case No : Crl.MC.No.8984 of 2002
Decided On : 07/21/2005
Advocates Appeared :
For the Petitioner: P. Vijaya Bhanu, P. Maya, Advocates. For the Respondents: Thavamany, Public Prosecutor, R2, D. Sajeev, Ligey Antony, Advocates.
Penal Code 1860 - Section. 494 - Criminal Procedure Code, 1973 - Section. 198( 1) - Marrying again during lifetime of husband or wife - Does a son require any written authorisation from his mother to prosecute his father and second wife for bigamy under S.494 of Indian Penal Code - Is it necessary that a complaint filed by the son should reflect that the complaint is filed 'on behalf of the mother? These are the main questions which arise for consideration in this case - The second respondent herein filed a private complaint before the Magistrate's court against the father and his second wife. As per allegations in the complaint, complainant's father who is arrayed as first accused married his mother in accordance with the religious rites and two children were also born in the wed-lock. But, while the marriage was subsisting, his father married the petitioner herein. The complainant came to know about the second marriage only when divorce proceedings were initiated by his father against the mother and when he made certain enquiries in connection with the same. The complainant, being aggrieved by the second marriage of his father filed the complaint - Appeal against - Held, Any person who is a member of the group of 'aggrieved persons' can file complaints for offences falling under Chapter XX of IPC. The words 'some person aggrieved' appearing in S.198 of the Code are used to include also, persons other than the spouses. If a complaint is filed in a case involving matrimonial offences by certain class of persons by offences under Chap. XX of IPC, i.e., 'some person aggrieved', there is no bar under S.198(1) of the Code in taking cognizance of such offences. But, who could be such other persons? Do they include son of the aggrieved wife in an offence under S.494 IPC ? Apart from the aggrieved wife or husband, their son can undoubtedly be treated as a person aggrieved by the offence under S.494 IPC. He can also file a complaint alleging offence of bigamy, as a person who belongs to the group of ' some person aggrieved' coming under S.198(1) of the Code. He 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. Thus, the provision contained in proviso (c) to S.198(1) is designed to aid a woman, and not to restrict the son or some other person aggrieved by the offence in filing the complaint on their own. It cannot be said that the right conferred by S.198(1) to 'some person aggrieved' (which includes the son also) is taken away by a proviso to the same section. A contrary view may be possible, only if (as in the case of offence under S.497 or 498 IPC), there is an express bar under any provision, prohibiting the son or other aggrieved persons from filing the complaint on their own behalf (vide also S.198(2)). A written authorisation from the wife is not necessary for the son to file a complaint on behalf of his mother. Legislature only designed a provision by S.198(1) proviso (c) to enable the aggrieved wife to make any of her close relative to file complaint in her place. No written authorisation is made essential by the provision. So, what the legislature thoughtfully avoided, the court shall not insist - Court find from the allegations in the complaint that the second respondent-son himself was aggrieved by the act of bigamy. He has narrated in detail, his personal grievances because of the second marriage of his father. It is clear that he himself is aggrieved and this is in addition to the personal grievances of his mother. The allegations in the complaint also, prima facie, constitute offence under S.494 IPC. Therefore, on the facts of this case, no authorisation from the aggrieved wife is required. It is not necessary also to mention in the complaint that the complaint is filed on behalf of his mother, even if it is filed at her request. 'On behalf of the mother' would mean that 'instead of the mother' or 'in her place'. That apart, son is entitled to file a complaint even on his own behalf. Hence, there is no ground to interfere. Let the prosecution continue. - This petition is dismissed.
Does a son require any written authorisation from his mother to prosecute his father and second wife for bigamy under section 494 of Indian Penal Code (IPC, for short)? It is necessary that a complaint filed by the son should reflect that the complainant is filed “on behalf of’ the mother? These are the main questions which arise for consideration in this case.
2. The second respondent herein filed a private complaint before the Magistrate’s Court against the father and his second wife. The offence alleged is under section 494 and 34 of Indian Penal Code (IPC, for short). As per allegations in the complaint, complaint’s father who is arrayed as first accused married his mother in accordance with the religious rites and two children were also born in the wed-lock. But, while the marriage was subsisting, his father married the petitioner herein. The complainant came to know about the second marriage only when divorce proceedings were initiated by his father against the mother and when he made certain enquiries in connection with the same. The complainant, being aggrieved by the second marriage of his father filed the complaint.
3. Petitioner-second wife seeks to quash the proceedings initiated against her mainly on the ground that the second respondent, being the son, has no locus standi to file a complaint against her for offence under section 494 IPC. Sri. Alan Pappally, learned counsel appearing for petitioner strongly contended that under section 198 of the code, the court is barred from taking cognizance of offence under section 494 IPC, except on a complaint filed by the aggrieved person, who can only be the spouse. According to him, as per proviso (c) to sub clause (1) of Section 198 of the code, if the person aggrieved by the offence under section 494 IPC is the wife, a son can file a complaint only “on her behalf” and not on his own behalf.
4. But, second respondent-son filed the complaint in his individual capacity and not on behalf of his mother. No authorization or power of attorney was produced by him authorizing him to file the complaint. Nothing is mentioned in the complaint showing that the complaint is filed on behalf of the mother. Therefore, the contention is that the complaint is filed contrary to the provision contained in section 198(1)(c) of the code and hence taking of cognizance is illegal.
5. To understand and appreciate the merit of the contentions raised on behalf of the petitioner, a reading of Section 198 of the code is absolutely necessary. The relevant clauses in the provision alone are extracted as hereunder:
“S. 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 xxx
(b) xxx 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.”
It may appear from a plain reading of section 198 of the code that the court cannot take cognizance of offences falling under Chapter XX of IPC, except on a complaint filed by the person aggrieved i.e., either of the spouses. It may also appear that as per proviso (c) to section 198(1), if the person aggrieved of offence under section 494 IPC is the wife, certain close relatives stated therein can file a complaint on “on her behalf’, and not on their own behalf.
6. But a closer reading of section 198(1) of the code makes it clear that it is not merely the spouses who can file complaint in matrimonial offences. Certain other persons also can file complaints in their individual capacity. Section 198(1) of the Code lays down that ‘some person
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