Kerala High Court
Xxxxxx vs State Of Kerala on 12 September, 2025
2025:KER:67386
O.P (Crl).No.284/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
OP(CRL.) NO. 284 OF 2025
CRIME NO.763/2016 OF MALAPPURAM POLICE STATION, MALAPPURAM
SC NO.826 OF 2017 OF FAST TRACK SPECIAL COURT, MANJERI
ORDER DATED 20.04.2017 IN CP NO.25 OF 2017 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,MALAPPURAM
PETITIONER/ACCUSED:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
SHRI.THAREEQ ANVER
SMT.K.C.KHAMARUNNISA
SHRI.K.SHAMSUDHEEN
SRI.ARUN CHAND
SHRI.RASSAL JANARDHANAN A.
SHRI. GOVIND G. NAIR
SHRI.SHINTO MATHEW ABRAHAM
RESPONDENT/STATE AND DE FACTO COMPLAINANT (VICTIM):
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
3 INSPECTOR OF POLICE, MALAPPURAM POLICE STATION,
DOWNHILL POST, MALAPPURAM, PIN - 676519
SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
10.09.2025, THE COURT ON 12.09.2025 DELIVERED THE FOLLOWING:
2025:KER:67386
O.P (Crl).No.284/2025 2
JUDGMENT
The accused in S.C No.826/2017 on the files of the Fast Track
Special Court, Manjeri has filed this petition under Article 227 of the
Constitution of India for quashing the proceedings against him in the said
case. The offence alleged are under Section 376B I.P.C and Section 31(1)
of the Protection of Women from Domestic Violence Act (hereafter
referred as 'the Act') .
2. The prosecution case is that the accused, who is the husband
of the de facto complainant, raped her on 16.12.2016, while they were
remaining under separation pursuant to the talaq executed on
02.11.2016. It is stated that the de facto complainant was residing in the
same house of the petitioner, as permitted by the order passed by the
Judicial First Class Magistrate Court, Malappuram, in a domestic violence
complaint preferred by her. It is the further case of the prosecution that,
on 25.12.2016, the petitioner expelled the de facto complainant from his
house, in violation of the order of the learned Magistrate. Thus, the
petitioner is alleged to have committed the offence under Section 376B
I.P.C and Section 31(1) of the Act.
3. In the present petition, the petitioner would contend that the
prosecution against him is, prima facie, not maintainable in view of the
2025:KER:67386
bar contained under Section 198B Cr.P.C. It is further contended that
prosecution for the offence under Section 31(1) of the Act is not
maintainable before the Sessions Court in view of the provisions
contained under Section 26(b) of Cr.P.C.
4. Heard the learned counsel for the petitioner and the learned
Public Prosecutor representing the State of Kerala.
5. The offence under Section 376B I.P.C is attracted when it is
shown that the offender had committed rape upon his wife while they
were living separately under a decree of separation or otherwise. It is
thus obvious that the marital status of the victim as the wife of the
accused shall be subsisting at the time when the offence as stated above
is committed.
6. As far as the present case is concerned, the petitioner is
alleged to have pronounced talaq upon the de facto complainant and
communicated the same to the Juma Masjid Committee concerned on
02.11.2016. However, there is no case for the prosecution that the
aforesaid talaq has come into effect. Going by the personal law of the
parties concerned, the divorce by way of talaq would come into effect
only on expiry of 90 days from the date of pronouncement of talaq.
Thus, it has to be stated that the marital status of the de facto
2025:KER:67386
complainant was as the wife of the petitioner on 16.12.2016, when she
was allegedly subjected to sexual intercourse against her consent by the
petitioner. Obviously, it is due to the said reason that the petitioner has
been proceeded against for the commission of offence under Section
376B I.P.C. But, it is pertinent to note that, as per the provisions
contained in Section 198B Cr.P.C, cognizance for the offence under
Section 376B I.P.C could be taken by the Court concerned only upon a
complaint filed by the wife. The aforesaid provision expressly bars taking
cognizance of the aforesaid offence in any other manner. Thus, it is
apparent that the learned Magistrate had taken cognizance of the offence
under Section 376B I.P.C upon the final report filed by the Malappuram
Police, against the legal embargo contained in Section 198B Cr.P.C. That
being so, the prayer of the petitioner to quash the proceedings against
him in respect of the aforesaid offence, is fully justified.
7. As far as the offence under Section 31(1) of the Act is
concerned, it is pertinent to note that the petitioner is alleged to have
committed the aforesaid offence by forcefully expelling the de facto
complainant from his house on 25.12.2016, which is nine days after his
alleged act of rape committed upon the de facto complainant on
16.12.2016. Since the aforesaid act of expulsion of the de facto
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complainant from the matrimonial home is a distinct offence, which took
place at a later point of time, the Investigating Agency had apparently
gone wrong in registering the same F.I.R in respect of the aforesaid two
offences. That apart, there is substance in the contention of the
petitioner that the offence under Section 31(1) of the Act is a matter to
be dealt with by the Judicial First Class Magistrate concerned. Therefore,
the prosecution initiated against the petitioner in respect of the said
offence, is also liable to be quashed.
In the result, the petition stands allowed as follows:
(1) The proceedings against the petitioner/accused 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.
(2) It is made clear that this order would in no way preclude the
institution of prosecution proceedings against the petitioner in conformity
with the procedures prescribed by law.
(sd/-)
G. GIRISH, JUDGE
jsr
