Section 198 CrPC and Section 219 BNSS: Prosecution for Offences Against Marriage

Section 198 of the Code of Criminal Procedure, 1973 restricted who could initiate a complaint for offences against marriage. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 219 BNSS, in force from 1 July 2024.

What does prosecution for offences against marriage mean?

Cognizance is the judicial act of taking notice of an alleged offence for proceeding under criminal law. Section 219(1) BNSS ordinarily prevents a court from taking cognizance of specified marriage offences unless a complaint is made by a person aggrieved, meaning a person directly affected by the alleged offence, subject to the statutory exceptions.

A complaint in this context is an allegation made to a Magistrate seeking action under criminal procedure; it is distinct from an ordinary police report. See the definition of complaint under Section 2(1)(h) BNSS and the provisions governing complaints to Magistrates.

Marriage offences covered by Section 219 BNSS

The earlier IPC offence of adultery under Section 497 was struck down as unconstitutional in Joseph Shine v. Union of India (2018); it is not a corresponding BNS offence.

Who can file a complaint?

Section 219(1): Person aggrieved

The general rule is that the person aggrieved by an offence under BNS Sections 81 to 84 must make the complaint. This restriction concerns the court taking cognizance and should not be confused with the substantive ingredients of the offence.

Section 219(1)(a): Complaint through another person

With the court's permission, another person may complain where the aggrieved person is a child, is of unsound mind, has an intellectual disability requiring higher support needs, cannot complain because of sickness or infirmity, or is a woman who under local customs and manners ought not be compelled to appear publicly.

Section 219(1)(b): Husband serving in the Armed Forces

If a husband serving in the Armed Forces of the Union cannot obtain leave to file personally, a duly authorised person may complain on his behalf. The Commanding Officer must certify the inability to obtain leave, and the authorisation must comply with subsection (4).

Section 219(1)(c): Bigamy complaint on behalf of wife

For an offence under BNS Section 82, a wife may be represented by her father, mother, brother, sister, son, daughter, or her father's or mother's brother or sister. Any other relative by blood, marriage or adoption needs the court's leave.

Section 219(2): Offence under BNS Section 84

For Section 84, only the husband of the woman is deemed to be the aggrieved person for purposes of the complaint rule. The current BNSS provision does not retain the earlier CrPC reference to the now-invalidated IPC Section 497.

Safeguards and procedure under subsections (3) to (5)

Subsection (3): Where a person who is not the legally appointed or declared guardian seeks to complain on behalf of a child or a person of unsound mind, and the court is satisfied that such a guardian exists, the guardian must receive notice and a reasonable opportunity to be heard before leave is granted.

Subsection (4): An Armed Forces husband's authorisation must be in writing, signed or otherwise attested by him, state that he has been informed of the allegations, be countersigned by his Commanding Officer and be accompanied by that officer's certificate explaining why leave cannot be granted.

Subsection (5): Documents purporting to be the prescribed authorisation and certificate are presumed genuine unless the contrary is proved and are receivable in evidence.

One-year restriction under Section 219(6)

Subsection (6) contains a special bar on cognizance after one year for the offence described there under BNS Section 64 involving sexual intercourse by a man with his own wife when the wife was under eighteen. The provision must be read with the substantive law governing sexual offences against minors, including the Protection of Children from Sexual Offences Act, 2012, where applicable. It is not a general one-year limitation for all marriage offences.

Abetment and attempt: Section 219(7)

The complaint restrictions in Section 219 also apply to abetment of, or attempt to commit, the relevant offence, in the same way as they apply to the completed offence.

Historical position: Section 198 CrPC, 1973

Section 198 CrPC previously governed complaints for offences punishable under Chapter XX of the Indian Penal Code. Its seven subsections addressed complaints by aggrieved persons, representatives for persons unable to complain, special authorisation for Armed Forces husbands, guardian notice, evidentiary presumptions, a specific one-year restriction, and abetment or attempt.

Under the former provision, subsection (1)(c) addressed IPC Sections 494 and 495; subsection (2) referred to IPC Sections 497 and 498. IPC Section 497 (adultery) ceased to be a valid criminal offence following the Supreme Court's 2018 judgment. The old wording should therefore not be treated as the current statement of criminal law. Amendments to Section 198 CrPC included Act 45 of 1978 (expanding relevant representative complaints) and Act 5 of 2009 (substituting eighteen years in subsection (6)).

For the original statutory text and transitional application, consult the official legislation links below. Pending matters require case-specific examination of the BNSS repeal-and-savings clause.

Frequently asked questions

Is Section 198 CrPC still applicable?

The CrPC was replaced by the BNSS with effect from 1 July 2024. Section 219 BNSS is the corresponding current provision, subject to transitional and savings rules for earlier proceedings.

Can a relative file a bigamy complaint?

Yes, in the circumstances expressly specified by Section 219(1)(c) BNSS. Some relatives may complain on the wife's behalf directly, while other relatives require the court's leave.

Is adultery still a criminal offence in India?

No. The Supreme Court invalidated IPC Section 497 in 2018. Adultery may remain relevant in matrimonial proceedings under applicable personal laws, but is not itself a criminal offence.

Official statutory sources

• India Code - official central legislation database (search for Act 46 of 2023, Section 219, and Act 45 of 2023, Sections 81 to 84).
• National Crime Records Bureau - BNSS chapter-wise statutory text.
• Bureau of Police Research and Development - BNSS reference PDF.
• Ministry of Home Affairs - commencement of the new criminal laws.
• Supreme Court of India (judgment search: Joseph Shine v. Union of India, 2018).

This article provides general legal information and does not replace advice based on the facts and applicable procedural law of an individual case.