The Kerala High Court has quashed criminal proceedings against a Malappuram resident who was facing trial for marital rape and violation of a domestic violence order. The ruling came from Justice G. Girish on Friday, September 12, after hearing arguments from both the accused and the State.
Background
The case stemmed from allegations by the man's estranged wife. According to the prosecution, he had pronounced talaq on November 2, 2016, but his wife continued to live in the matrimonial home under a magistrate’s order in a domestic violence complaint.
She alleged that on December 16, 2016, he forced himself on her, and days later, on December 25, expelled her from the house in violation of the court’s directive. Based on these accusations, the Malappuram police registered a case for rape under Section 376B of the Indian Penal Code and violation of protection orders under Section 31(1) of the Domestic Violence Act.
Court's Observations
The bench took a closer look at the legal technicalities. Justice Girish noted that under Muslim personal law, a talaq becomes effective only after 90 days of pronouncement. Therefore, on December 16, when the alleged sexual act occurred, the woman was still legally the wife.
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"It is precisely for such situations that Section 376B exists," the judge remarked, explaining that this provision deals with sexual assault by a husband living separately from his wife.
However, the judge underlined a crucial flaw in the way the case was filed. Section 198B of the Criminal Procedure Code specifically states that a court can take cognizance of such an offence only if the wife herself files a complaint. Here, the police had initiated proceedings through their final report, which the court found impermissible.
"The Magistrate's cognizance was against the legal embargo in Section 198B," Justice Girish said.
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On the domestic violence charge, the court pointed out another procedural irregularity. The alleged expulsion of the wife from the home was a distinct offence, separate in time from the earlier act. Yet, the police had clubbed both allegations into the same FIR. Moreover, the judge noted that offences under Section 31(1) of the Act fall under the jurisdiction of a Judicial First Class Magistrate, not a Sessions Court.
Decision
After considering the submissions, the High Court allowed the petition.
Justice Girish ordered:
"The proceedings against the petitioner in S.C. No.826/2017 on the files of the Fast Track Special Court, Manjeri, which arose out of Crime No.763/2016 of Malappuram Police Station, are hereby quashed."
The court added a caveat, making it clear that this order does not prevent future prosecution if initiated correctly:
"This order would in no way preclude the institution of prosecution proceedings against the petitioner in conformity with the procedures prescribed by law."
