Husband cannt be charged under adultery (s.497 IPC)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 22748 of 2015
FOR APPROVAL AND SIGNATURE : HONOURABLE MR.JUSTICE J.B.PARDIWALA
VINOD SAMAT PATARIYA & 2….Applicant(s)
STATE OF GUJARAT & 1….Respondent(s)
MR AD DESAI, ADVOCATE for the Applicant(s) No. 1 – 3
MS.P J.JOSHI, ADVOCATE for the Applicant(s) No. 1 – 3
MR. H.K. PATEL, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/01/2016
By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the Criminal Case No. 301/15, filed in the Court of the learned Judicial Magistrate First Class, Mandvi, Kutch, arising from a private complaint lodged by the respondent No.2 herein for the offence punishable under Sections 497 read with 114 of the IPC.
The case of the complainant may be summarised as under:-
2.1 The respondent No.2 got married with the applicant No.1 on 8.7.2010. It appears that soon thereafter matrimonial disputes cropped up between the husband and the wife. The respondent No.2 thought fit to lodge an FIR against the applicants Nos.1 and 2 and other co-accused. The prosecution instituted by the respondent No.2 through the State culminated in Criminal Case No. 27/11 and the same resulted in the judgment and order of acquittal dated 29th September, 2014, passed by the learned JMFC, Mandvi, Kutch.
2.2 Soon thereafter, the respondent No.2 thought fit to file a private complaint dated 4.4.2015 against the applicant No.1 i.e. the husband, the applicant No.2 i.e., the father-in-law and the applicant No.3, the lady with whom the applicant No.1 is alleged to be in an illicit relationship. It is the case of the complainant that being a married man, the husband is in an illicit relationship with the applicant No.3 herein and is living an adulterous life. It is her case that the applicant No.2 being the father of the applicant No.1 has abetted the commission of the offence. In the same manner, it is alleged that the applicant No.3 has also abetted the commission of the offence of adultery, as she is in an illicit relationship with a married man.
The learned Magistrate thought fit to take cognizance upon the said complaint and ordered issue of process against the applicants herein for the offence punishable under Sections 497 read with 114 of the IPC.
Being dissatisfied, the applicants herein have come up with this application praying for quashing of the proceedings of the criminal case.
Ms. P.J. Joshi, the learned advocate appearing for the applicants vehemently submitted that the learned Magistrate committed a serious error in taking cognizance upon the complaint and ought not to have issued process for the offence punishable under Sections 497 read with 114 of the IPC. Ms. Joshi submitted that indisputably, the applicant No.3 with whom the applicant No.1 is alleged to be in an illicit relationship, is an unmarried lady. She submitted that even if the entire case of the complainant is accepted as true, none of the ingredients to constitute the offence punishable under Section 497 of the IPC are spelt out. She further submitted that the respondent No.2 in her capacity as the wife of the applicant No.1 has no locus to file a complaint for the offence of adultery.
The respondent No.2, although served with the notice issued by this Court, yet has chosen not to remain present either in person or through an advocate and oppose this application.
The learned APP Mr. H.K. Patel appearing for the State of Gujarat submitted that no error could be said to have been committed by the learned Magistrate in issuing the process against the applicants for the offence punishable under Sections 497 read with 114 of the IPC.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the complaint is maintainable in law.
Section 497 of the IPC reads as under: 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.
According to the definition of adultery referred to above, and in order to constitute an offence of adultery, three essential ingredients are necessary. (i) Sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be the wife of another man; (ii) Such sexual intercourse must be without the consent or connivance of the husband and (iii) Such sexual intercourse must not amount to rape.
Thus, to bring home an offence under Section 497 IPC, the prosecution is to prove (a) that the complainant had married a girl; (b) that a male person outside the aforesaid wedlock had sexual intercourse with the wife of the complainant; (c) that such sexual intercourse did not amount to rape i.e. to say if the wife was above 16, the aforesaid sexual intercourse was consensual. If the said wife be below sixteen whether the coitus with her consent or without, the offence would come under the realm of rape punishable under Section 376 IPC.
Section 198 of the Cr. P.C is with regard to the prosecution for offences against marriage. Section 198 clause (2) along with the proviso reads as under:-
198. Prosecution for offences against marriage
(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence :
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, 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 for 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 a [section 494 or section 495] of the Indian Penal Code 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 b [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 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 committed may, with the leave of the Court, make a complaint on his behalf.
(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 person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, 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 counter-signed 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 S. 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his own wife, the wife being under c [eighteen years of age], if more than one year has elapased from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
Section 497 IPC confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. Section 497 IPC also does not take in cases where the husband has sexual relations with an unmarried woman (like as alleged in the present case). It is the first principle of criminal law that where a statute creates a criminal offence, the ingredients of that criminal offence must be strictly proved.
The Supreme Court in the case of Smt. Sowmithri Vishnu Vs. Union of India, reported in AIR 1985 SC 1618(1) observed in paragraph 11 as under:- “11. Though it is true that the erring spouses have no remedy against each other within the confines of Section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery. ‘Adultery’ under the civil law has a wider connotation than under the Penal Code. If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute book and adulterous relations will have a more free play than now. For then, it will be impossible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.”
The law, in my view is very clear. A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery. This may not be applicable when it comes to seeking divorce by the wife or the husband, as the case may be, on the ground of living an adulterous life.
I may also quote with profit a decision of the Supreme Court in the case of V. Revathi Vs. Union of India, reported in AIR 1988 SC 835, wherein the Supreme Court observed in paragraphs 3, 4 and 5 as under:-
“3 .Be it realised that S. 497, Penal Code, is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife,the wife cannot be lawfully disabled from prosecuting her disloyal husband. And that in so far as and to the extent S. 198(2), Criminal P.C., operates as a fetter on the wife in prosecuting her adulterer husband, the relevant provision is unconstitutional on the ground of obnoxious discrimination, she asserts.
4. This very argument came to be debated before a Bench of this Court in Sowmithri Vishnu v. Union of India, 1985 (Suppl) SCC 137 : (AIR 1985 SC 1618) in the context of a challenge to the constitutionality of S. 497 2, Penal Code by an adulterer who had been prosecuted for the offence of adultery under S. 497 2, Penal Code, by the husband of the adulteress. Three grounds were pressed into service in support of the challenge rooted in Art. 14 of the Constitution in Sowmithri Vishnu’s case (supra). Ground No. 2 was in the following terms :- 2. “497. 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.” “Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.”
This ground of challenge has been dealt with by this Court in Para 8 of the said judgment wherein Chandrachud, C.J. spoke thus on behalf of the Court :- “In so far as the second of the three grounds is concerned, S. 497 does not envisage the prosecution of the wife by the husband for ‘adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed the section provides, expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not author of the crime. The offence of adultery as defined in S. 497, is considered by the legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point : Who can prosecute whom for which offence depends firstly, on the definition of the offence and, secondly, upon the restriction placed by the law of procedure on the right to prosecute.”
Thus this very argument has already been repulsed by this Court, albeit, in the context of the challenge to S. 497, Penal Code. The same bullet has now been fired in order to assail S. 198(2), Criminal P.C., in so far as it confines the right to prosecute the adulterer to the aggrieved husband of the adulteress. The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife, the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife, inasmuch as by the very definition of the offence, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social goodwill be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the Criminal Court. They can either condone the offence in a spirit of ‘forgive and forget’ and live together or separate by approaching a matrimonial Court and snapping the matrimonial tie by securing divorce. They are not enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence. For, the Court is not the arbiter of the wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law.
5. Section 497, Penal Code, and S. 198(l) read with S. 198(2), Criminal P.C. 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 S. 198(l) read with S. 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 S. 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.”
In view of the above, not only the complaint is not maintainable in law, but the husband could not be said to have committed any offence of adultery even if it is believed that he is in a live-in relationship with the applicant No.3, who is an unmarried lady. In view of the above, this application succeeds and is allowed. The further proceedings of the Criminal Case No. 301/15, pending in the Court of the learned Judicial Magistrate First Class, Mandvi, Kutch, arising from the private complaint lodged by the respondent No.2 herein for the offence punishable under Sections 497 read with 114 of the IPC are hereby ordered to be quashed.