Bharatiya Nagarik Suraksha Sanhita, 2023
Section 219
Prosecution for offences against marriage
(1) No Court shall take cognizance of an offence punishable under sections 81 to 84 (both inclusive) of the Bharatiya Nyaya Sanhita, 2023 except upon a complaint made by some person aggrieved by the offence: Provided that—
(a) where such person is a child, or is of unsound mind or is having intellectual disability requiring higher support needs, 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 82 of the Bharatiya Nyaya Sanhita, 2023 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.
(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 84 of the Bharatiya Nyaya Sanhita, 2023.
(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a child or of a person of unsound mind by a person who has not been appointed or declared by a competent authority to be the guardian of the child, or of the person of unsound mind, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 64 of the Bharatiya Nyaya Sanhita, 2023, where such offence consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commission of the offence.
Why this exists
This provision continues a long-standing rule from Section 198 of the old Code of Criminal Procedure, which treated marriage-related offences as essentially private wrongs between spouses or family members rather than crimes against the state at large. The idea was to give the aggrieved spouse control over whether such deeply personal disputes — bigamy, deceitful marriages, enticement — become public criminal proceedings, while carving out exceptions for people (children, the sick, disabled, or women bound by custom) who cannot easily speak for themselves. Sub-section (6), a newer addition, responds to the Supreme Court's redefinition of what counts as rape within a marriage involving a wife under 18, and sets a time limit for prosecuting such cases.
How courts read it
The 'husband-only aggrieved person' rule in sub-section (2) and the special treatment of bigamy complaints trace back to how courts interpreted Section 198 of the CrPC for decades, including recognising limited categories of relatives who could complain on a wife's behalf in bigamy cases. Sub-section (6) reflects the Supreme Court's decision in Independent Thought v. Union of India (2017), which read down the marital rape exception so that sex with a wife under 18 is treated as rape regardless of marriage; this new sub-section responds by fixing a one-year limitation for prosecuting such cases. Separately, the Supreme Court's decision in Joseph Shine v. Union of India (2018), which struck down adultery as a crime, is part of the backdrop explaining why enticement of a married woman (Section 84) remains one of the few marriage offences left with a husband-only complainant restriction, since adultery itself is no longer criminalised.
Common misconceptions
- Myth: Police can file a case for bigamy or similar marriage offences just like any other crime, based on an FIR.
Fact: For the offences in Sections 81-84 of the Bharatiya Nyaya Sanhita, courts cannot take up the case unless the aggrieved person (or a specifically permitted relative) files a complaint — the police cannot prosecute on their own. - Myth: Any relative can file a complaint on behalf of a wronged wife in these marriage cases.
Fact: Only for bigamy under Section 82 does the law name specific relatives (parents, siblings, children, etc.) who can complain for the wife; other relatives need the court's special permission. - Myth: A man having sex with his wife who is under 18 can be prosecuted for rape at any time, no matter how much time has passed.
Fact: Sub-section (6) sets a strict one-year limit from the date of the offence, after which the court cannot take cognizance of such a case under Section 64.