ORDER
Chaturvedi, J.
1. The petitioner Kamal Chand had lodged a report in the police alleging that. Imarti Bai, wife of the complainant Amar Chand, had stolen his silver bunch of keys. This allegation was subsequently found to be false. Amar Chand, the complainant, then lodged a complaint against Kamal Chand under Section 500, I.P.C. and the petitioner was convicted by the City Magistrate, Lashkar, under that section and was sentenced to pay a line of Rs. 50/-. The petitioner went to the-Sessions Judge, Gwalior in revision and the learned Sessions Judge has recommended that the conviction of Kamal Chand petitioner be set aside on the ground that the complaint against the petitioner was not lodged by Imarti Bai but was lodged by her husband.
2. Ordinarily a complaint of a criminal offence may be filed by any person, not necessarily by the person aggrieved; but there are certain exceptions to this rule, one of which is contained in Section 198, Criminal Procedure Code, the first part of which reads as follows:
No Court shall take cognisance of an offence falling under Chapter 19 or Chapter 21, I.P.C. or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence.
3. The offence of defamation is made punishable under Chapter 21 of the Indian Penal Code and consequently no Court can take cognisance of an offence of defamation except upon a complaint made by some person aggrieved by such offence. The question for determination in the present case, is whether Amar Chand, the complainant, is a person aggrieved within the meaning of Section 198, Criminal Procedure Code?
4. There are several rulings which lay down that where the wife is defamed by the imputation of unchastity, her husband is a person aggrieved, upon whose complaint the Magistrate can take cognisance of a complaint under Section 198, Criminal Procedure Code. These cases are reported in Gurudit Singh v. Emneror 5 Lah 301: Chhota Lal Lallubhai v. Nathabhai Bechar 25 Bom 151 and in Chellam Naidu v. Ramasami, 14 Mad 379. In Thakurdas Sar v. Adhar Chandra 32 Cal 425, where the alleged offence was defamation imputing unchastity to a Hindu widow, it was held, that her brother, with whom she was residing at the time, was a person aggrieved within the terms of Section 198, Criminal Procedure Code. The learned Judges considered the case reported in ’25 Bom 151 FB’ and expressly disagreed from the view expressed by Ranade, J., the dissenting Judge.
In all these cases the principle acted upon appears to be that a Hindu lady residing with her husband, her father, her brother, or her son is a member of his family, and her reputation is bound up with the reputation of the person in whose house she resides, if any imputation is made against her character that would affect as much the relative with whom she is living as herself, and, therefore, where the alleged offence is defamation imputing unchastity, the party “aggrieved” is not necessarily the party directly defamed but includes also the husband or other relatives whose reputation is also affected and suffers injury. Considering the circumstances and condition sunder which people live in India and where the imputation of an unchastity of a female makes the whole family liable to social ostracism the propriety of the application of the principle alluded to above cannot be disputed. In all such cases the defamer’s object is always to vilify the relatives and not the female alone. The imputation in such cases is that the relatives knew of the female’s unchastity and with that knowledge lived with her.
5. The same principle however cannot be made applicable to those cases where there is no imputation of unchastity and in such cases the question whether the husband is a person aggrieved within the meaning of Section 198 must be determined with reference to the nature of the accusation and having regard to the special circumstances of each case. If the allegation against the female is that she has stolen some property it cannot be said that the personal reputation of her husband has been harmed in any way and it cannot be maintained in such cases that the defamer’s object was to vilify the husband and not the wife; for, in such a case, the slanderous words spoken or written do not impute any personal misconduct to the complainant. It is no doubt true that the husband’s feeling would be injured and also his reputation to a certain extent. But it is also to be borne in mind that a person ‘aggrieved’ does not mean a person whose feelings have been hurt by the alleged defamation. If the term was intended to be capable of such extensive and elastic applicability, as pointed out in Husseinbhoy v. Emperor AIR 1934 Sindh 188, there could hardly have been any reason to lay down a restriction in the first part of Section 198 or to incorporate the provisions to that Section in 1923 by an amending Act.
6. The following observations of Jenkins C. J. in Chhotalal v. Nathabhai 25 Bom. 151 FB are, in my opinion, important:
I am unable to find in the Code any limitation of the sense in which the word ‘aggrieved’ is used. Nor is there any indication of the kind of grievance which may qualify a man to complain. Still I think it must be conceded that any fanciful or sentimental grievance would not suffice; It must be such a grievance as the law can appreciate: it must be what has been termed a legal grievance and not a ‘stat pro ratione voluntas’ reason.
7. In the present case where the wife was accused of theft in my opinion, the husband cannot be deemed to have a legal grievance; for, whatever pain of mind he may suffer from j the slander of his wife, the injury caused to him is mediate or remote and not immediate’ or proximate. There is no imputation of personal misconduct of the husband involved in the accusation. I must hold, therefore that, in the present case, the husband Inder Chand, in the circumstances of this case, was not a person aggrieved within the meaning of Section 198, Criminal Procedure Code, and was not competent to lodge a complaint.
8. The proviso to Section 198 clearly renders It permissible in the case of a woman, who according to customs and manners of the country ought not to be compelled to appear in public, that a complaint of any of the offences specified in Section 198 be taken cognisance of by a Court a on a complaint made by some other person on behalf of such woman, provided the leave of the Court is taken for the purpose. Inder Chand could have lodged the complaint with the permission of the Court; but such permission was never obtained in this case. The provisions of the Section are mandatory and the trial without such leave must be held to be void. Even if no objection with regard to jurisdiction is taken in the trial Court this cannot confer jurisdiction on the Magistrate who tried the applicant. I am fortified in this view by a decision of the Oudh Chief Court reported in Jagdish Narain v. Shams Ara Begam 10 Luck 277 : AIR 1935 Oudh 6.
9. Under these circumstances, the reference is accepted and the conviction and the sentence of the applicant is set aside. Fine if paid will be refunded.