The main legal point established in the judgment is that a complaint under Section 494 IPC can only be filed by an 'aggrieved person' as per Section 198 Cr. P.C., and the exceptions for filing on behalf of the wife do not apply to the husband.

1. The relevant facts for disposal of this petition are that Resham Singh was married to petitioner No. 1, Parminder Kaur. In the year 1989, the police of Police Station, Rahon, took Resham Singh in their custody from his house and had taken him to an unknown place, suspected him to be a terrorist involved in terrorist activities. Petitioner No. 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could not succeed and his whereabouts were not known. The police had also not disclosed his arrest, detention or elimination by fake or genuine encounter. He has never met petitioner No. 1 or any other relative or friend. Therefore, Resham Singh is presumed to be dead as he is unheard for the last more than 7 years i.e. since 1989.

2. Petitioner No. 1, keeping in view her own well being and better comfort of life and independent decision and without any pressure is now living with Inder Pal Singh, petitioner No. 2 at his house in Village Galoti, Tehsil and District Moga since 10-2-1998.

3. Joginder Kaur, respondent, mother of Resham Singh, filed a complaint under Section 494, 120-B IPC against all the petitioners on the allegation that Resham Singh is still alive and he left the house about 3 years ago after completely fed up from petitioner No. 1.

4. On notice of motion having been issued, separate replies have been filed by the respondents.

5. In the reply filed by respondent No. 1, mother of Resham Singh, she has raised a preliminary objection that petition is not maintainable as the summoning order dated 7-7-2002, Annexure P-2, is a revisable order and the petitioners have to approach the learned Sessions Judge instead of filing the present petition. Respondent No. 1 further stated in the reply that the petition can be decided only after recording the evidence. Therefore, the petition under Section 482 Cr. P.C. is not maintainable. In reply, she also stated that she is competent to file the complaint against the petitioners being mother in law of petitioner No. 1.

6. In reply filed by the State, it was denied that Resham Singh was ever taken into custody. The other averments made in the petition are also denied being false, wrong and baseless.

7. I have heard learned counsel for the parties and carefully gone through the record.

8. The important legal issue involved in this petition is whether a complaint under Section 494 IPC can be filed on behalf of the husband by any other person?

9. Chapter XX of the Indian Penal Code relates to the prosecution for offence against the marriage. When any offence is committed under Chapter XX of the Indian Penal Code, the complaint is to be filed as per Section 198 Cr. P.C. Section 198 reads as under :

"198. Prosecution for offences against marriage. (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) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;

(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