Writ against Adultery, IPC 497

ITEM NO.39 COURT NO.1 SECTION PIL-W
S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Writ Petition (Criminal) No.194/2017

JOSEPH SHINE Petitioner(s)
VERSUS
UNION OF INDIA Respondent(s)

Date : 08-12-2017 This petition was called on for hearing today.

CORAM :
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE A.M. KHANWILKAR
HON’BLE DR. JUSTICE D.Y. CHANDRACHUD

For Petitioner(s) Mr. Kaleeswaram Raj, Adv.
Mr. Suvidutt M.S., AOR For Respondent(s)

UPON hearing the counsel the Court made the following

O R D E R

Heard Mr. Kaleeswaram Raj, learned counsel for the petitioner.

In this petition, preferred under Article 32 of the Constitution of India, the petitioner has challenged the constitutional validity of Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code. The said provisions read as under:

“497. Adultery.—Whoever has sexual intercourse
with a person who is and whom he knows or has
reason to believe to be the wife of another
man, without the consent or connivance of that
man, such sexual intercourse not amounting to
the offence of rape, is guilty of the offence
of adultery, and shall be punished with
imprisonment of either description for a term
which may extend to five years, or with fine,
or with both. In such case the wife shall not
be punishable as an abettor.”

198.Prosecution for offences against marriage
(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 497 or section 498 of
the said Code: Provided that in the absence of
the husband, some person who had care of the
woman on his behalf at the time when such
offence was com- mitted may, with the leave of
the Court, make a complaint on his behalf.”

Learned counsel submits that the said provisions have been treated to be constitutionally valid in three Judgments, namely, Yusuf Abdul Aziz vs. State of Bombay, 1954 SCR 930 = AIR 1954 SC 321; Sowmithri Vishnu vs. Union of India and Another, (1985) Suppl.SCC 137 and V. Revathi vs. Union of India and Others, (1988) 2 SCC 72. He has also drawn our attention to the decision in W. Kalyani vs. State through Inspector of Police and Another, (2012) 1 SCC 358 wherein a two-Judge Bench of this Court, after referring to the provision, observed thus:

“10. The provision is currently under
criticism from certain quarters for showing a
strong gender bias for it makes the position of
a married woman almost as a property of her
husband. But in terms of the law as it stands,
it is evident from a plain reading of the
Section that only a man can be proceeded
against and punished for the offence of
adultery. Indeed, the Section provides
expressly that the wife cannot be punished even
as an abettor. Thus, the mere fact that the
appellant is a woman makes her completely
immune to the charge of adultery and she cannot
be proceeded against for that offence.”

On a perusal of the judgment in Yusuf Abdul Aziz’s case, it seems that the provision was upheld on the basis of Article 15(3) of the Constitution.

In Sowmithri Vishnu’s case (supra), the Court while relying on the principles laid down in Yusuf Abdul Aziz’s case opined that the provision is intra vires. For the said purpose, the Court has expressed the view thus:

“Law does not confer freedom upon husbands to
be licentious by gallivanting with unmarried
woman. It only makes a specific kind of extramarital
relationship an offence, the
relationship between a man and a married woman,
the man alone being the offender. An unfaithful
husband risks or, perhaps, invites a civil
action by the wife for separation. The
legislature is entitled to deal with the evil
where it is felt and seen most : A man seducing
the wife of another. Mrs. Chidambaram says that
women, both married and unmarried, have changed
their life style over the years and there are
cases where they have wrecked the peace and
happiness of other matrimonial homes. We hope
this is not too right but, an under-inclusive
definition is not necessarily discriminatory.
The alleged transformation in feminine
attitudes, for good or bad may justly engage
the attention of the law-makers when the reform
of penal law is undertaken. They may enlarge
the definition of adultery to keep pace with
the moving times. But, until then, the law must
remain as it is. The law, it is, does not
offend either Article 14 or Article 15 of the
Constitution. Incidentally, the demand of the
petitioner that sexual relationship of a
husband with an unmarried women should also be
comprehended with in the definition of
‘adultery’ is a crusade by a woman against a
woman. If the paramour of a married woman can
be guilty of adultery, why can an unmarried
girl who has sexual relations with a married
man not be guilty of adultery? That is the
grievance of the petitioner.”

In V. Revathi’s case (supra), learned Judges took the family as the platform and gave emphasis on the matrimonial unit and thereafter observed:

“5. Section 497 of the Indian Penal Code
and Section 198(1) read with Section 198(2) of
the Criminal Procedure Code go hand in hand and
constitute a legislative packet to deal with
the offence committed by an outsider to the
matrimonial unit who invades the peace and
privacy of the matrimonial unit and poisons the
relationship between the two partners
constituting the matrimonial unit. The
community punishes the ‘outsider’ who breaks
into the matrimonial home and occasions the
violation of sanctity of the matrimonial tie by
developing an illicit relationship with one of
the spouses subject to the rider that the
erring ‘man’ alone can be punished and not the
erring woman. It does not arm the two spouses
to hit each other with the weapon of criminal
law. That is why neither the husband can
prosecute the wife and send her to jail nor can
the wife prosecute the husband and send him to
jail. There is no discrimination based on sex.
While the outsider who violates the sanctity of
the matrimonial home is punished a rider has
been added that if the outsider is a woman she
is not punished. There is thus reverse
discrimination in ‘favour’ of the woman rather
than ‘against’ her. The law does not envisage
the punishment of any of the spouses at the
instance of each other. Thus there is no
discrimination against the woman in so far as
she is not permitted to prosecute her husband.
A husband is not permitted because the wife is
not treated an offender in the eye of law. The
wife is not permitted as Section 198( l) read
with section 198(2) does not permit her to do
so. In the ultimate analysis the law has meted
out even handed justice to both of them in the
matter of prosecuting each other or securing
the incarceration of each other. Thus no
discrimination has been practised in
circumscribing the scope of Section 198(2) and
fashioning it so that the right to prosecute
the adulterer is restricted to the husband of
the adulteress but has not been extended to the
wife of the adulterer. “

Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.

Issue notice, fixing a returnable date within four weeks. Dasti, in addition, is permitted.

(Chetan Kumar) (H.S. Parasher)
Court Master Assistant Registrar

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