Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. remarked “there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer.”

The brief facts of the case are that the marriage of the appellant and respondent was solemnised in 1983 according to Hindu rites and ceremonies. However, on account of matrimonial discord, appellant filed a petition for divorce in the year 1985-86 which, however, was ultimately compromised.  Thereafter, the parties resided peacefully and out of wedlock two sons were born. But allegedly even after those differences continued which even took the shape of occasional violence. Both even accused each other of adultery. The Trial Court passed a decree of dissolution of marriage in favour of the husband. Aggrieved by the decree of divorce passed by the Trial Court below, the appellant – wife has filed the instant appeal.

Counsel for petitioner Suneet Goel submitted that the Trial Court erred in coming to the conclusion that the wife is living in adultery, which contention had already been negated by the Court while adjudicating the petition filed by the wife for maintenance under Section 125 CrPC.

Counsel for respondents Varinder Thakur submitted that as regards the findings recorded by Trial Court under Section 125 CrPC. the same were not binding on the matrimonial Court in the matrimonial disputes and secondly, there is ample amount of evidence available on record, which shows that wife was living in adultery

The Court relied on judgment Pranab Kumar Karmakar v. Aarti Karmakar, 2008 SCC OnLine Cal 833  and observed that the findings in a proceeding under Section 125 Cr.P.C. cannot be binding on matrimonial Court while dealing with an application for divorce on the ground of res judicata. A matrimonial Court is required to arrive at an independent finding based on a material laced before it.

The Court further observed in light of the pleadings, evidence and subsequent events, that there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer. Moreover, each of the parties is already residing with a partner of opposite sex as husband and wife. Their relations are so strained that there is no possibility of reconciliation and the marriage between them has broke down irretrievably.

Thus, It would be unrealistic for law to not take notice of the fact that the irretrievable broke down of marriage must be considered as a ground for divorce.

The Court held “I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.” [Sunita Devi v. Suresh Kumar, 2022 SCC OnLine HP 1968, decided on 03-03-2022]


Arunima Bose, Editorial Assistant has reported this brief

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

Appellant-wife came up in the present appeal against the decision of the Family Court by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce was allowed and he had been granted a divorce.

As per the husband, when he filed a petition under Section 13 of the HMA, the behaviour of the respondent was very cruel, barbaric, rude and crude towards the respondent from the very beginning.

It was stated that, the wife had tried to take forcible possession of the agricultural land owned and possessed by the respondent and a civil suit against the appellant was pending in the District Courts, Karnal.

Further, it was alleged that the appellant was living in adultery with some person in the year 2012 and she forcibly turned out the respondent along with his four children from the house.

When the marriage of the husband and wife was fixed by the respondent, husband had requested the appellant to join the marriage, but she taunted that she had no concern with the respondent and his children.

In view of the above, a divorce petition was filed.

Analysis, Law and Decision

High Court expressed that, even if husband and wife are staying together and the husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating a number of judicial proceedings can make the life of other spouse miserable.

The Bench stated that in the present case, after the acquittal in the FIR and dismissal of the domestic violence complaint, enough mental cruelty had been caused to the husband.

Hence, the appellant’s counsel was unable to point out any illegality or infirmity in the impugned judgment.

In view of the above, the appeal was dismissed. [Harbans v. Joginder Pal, 2022 SCC OnLine P&H 1101, decided on 6-5-2022]


Advocates before the Court:

Mr. Avtar Singh Sandhu, Advocate, for Mr. A.S. Rai, Advocate, for the appellant-wife.

Mr. R.S. Budhwar, Advocate, for the respondent-husband.

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Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Factual Matrix


A criminal petition was filed seeking to set aside the decision by Family Court.

Instant petition had been filed against the order of the Additional Principal Judge filed by the respondent under Section 125 of the CrPC, whereby the Additional Principal Judge granted maintenance.

Petitioner impugned the order dated 31-7-2020, which enhanced the maintenance amount.

Analysis, Law and Decision


In the present matter, the maintenance order was challenged on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself.

Various Supreme Court and High Court decisions have established the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. In fact, in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife.

Hence,

Ground of cruelty and harassment do no stand ground for non-payment of the maintenance amount.

The Bench expressed that the codified law and judgments of various High Courts settle the position with respect to the bar of adultery for grant of maintenance in favour of the wife.

Law mandates that in order to extract the provision under Section 125(4) CrPC the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount o ‘living in adultery’.

The Bombay High Court decision in Pandurang Bakru Nathe v. Leela Pandurang Nathe, 1997 SCC OnLine Bom 264 made an observation with regard to the provision under Section 125(4) CrPC was relied on by the Court.

Another decision of the Kerala High Court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 was also relied on.

High Court found that the law as interpreted by the High Courts, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

The petitioner could not establish prima facie that the respondent was living in adultery, hence the respondent was not entitled to any maintenance.

Concluding the matter, Court declined to allow the instant petition, since the petitioner had failed to show any ground for challenging the order under the revisional jurisdiction of this Court.

Therefore, Bench did not find any cogent reason to interfere with the impugned order and judgment. [Pradeep Kumar Sharma v. Deepika Sharma, 2022 SCC OnLine Del 1035, decided on 13-4-2022]


Advocates before the Court:

For the Petitioner:

Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan, Advocates

For the Respondent:

Shamikh, Advocate

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Dr Justice Kauser Edappagath, JJ., held that, despite a warning by the husband, if the wife continues to make discreet calls with another man that too at odd hours, it would amount to matrimonial cruelty.

Background

Husband had instituted a petition for dissolution of marriage on the ground of adultery and cruelty, but the same was dismissed. A matrimonial appeal was filed challenging the said decision.

Wife had instituted a petition for return of gold ornaments and money, the same was allowed in part. Further another petition was instituted by the husband for appointing him as the guardian of a minor child, but the same was dismissed and a matrimonial appeal was filed challenging the same.

The above appeals were interconnected, hence this Court dealt with them together for their disposal.

Factual Matrix

In the present matter, both husband and wife accuse each other of the development of marital discord between them soon after the marriage.

Husband’s case was that, right from the inception of marriage, the wife perpetrated various iniquitous acts, ranging from mental agony by constantly using filthy language, abdicating all shared household duties, threatening to commit suicide, refusing to have sex, picking up quarrels constantly demanding to take her back to her parental home, ridiculing in front of others, abusing his mother, etc. making his life a living hell.

The wife did not stop the matrimonial cruelty and even dragged the husband’s mother and sister to matrimonial controversy launching a false and frivolous criminal prosecution against them.

The husband also stated that the wife had been maintaining an illicit relationship with the second respondent prior to her marriage and even thereafter.

Lower Court evaluated the evidence and found that the husband failed to prove that the wife was maintaining illicit relationship with the second respond and in so far as the ground of cruelty was concerned, the lower Court found that petitions for dissolution of marriage were settled, and parties had reunited. It was also held that inasmuch as the husband did not have a case in the present petition that the wife had caused physical or mental torture after the resumption of cohabitation, the divorce on the ground of cruelty cannot be granted.

In the case where divorce is sought on the ground of adultery, the proof required to establish adultery need not necessarily be proof beyond a shadow of doubt. Proof by preponderance of probabilities would be sufficient. Direct proof of adultery can rarely be given.

The circumstantial evidence is all that can normally be expected in proof of the charge of adultery.

In Court’s opinion, the allegation of adultery was not proved by the husband.

With regard to cruelty, the Court stated that,

Normally matrimonial cruelty takes place within the four walls of the matrimonial home and, therefore, independent witness may not be available. Hence, Court can even act upon the sole testimony of the spouse if it is found convincing and reliable. 

In the evidence of the husband, it came out that the wife caused innumerable mental stress and pain by consistently sharing abusive words and filthy language towards him and also by threatening to commit suicide on many occasions. The husband specifically deposed that right from the inception of marriage, there has been unusual conduct and abusive humiliating treatment on the part of the wife.

In view of the above, it could be inferred that the husband had every reason to apprehend that it was not safe for him to continue the marital relationship with his wife.

Condonation of Cruelty

Lower Court stated that, even assuming that the allegation of cruelty stood proved, there was clear condonation on the part of the accused.

Section 23(1) of the Hindu Marriage Act casts an obligation on the Court to consider the question of condonation which had to be discharged even in undefended cases.

“Condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct.”

However, condonation cannot be taken to be absolute and unconditional forgiveness.

Bench elaborated that, in case the matrimonial offence is repeated even after an act of condonation on the part of the spouse, it gets revived on the commission of subsequent act resulting in matrimonial disharmony.

It was noted that the husband and wife had entered into a compromise but later both of them accused each other of breaching the same.

High Court with respect to the above, added that mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored and there was no evidence to indicate resumption of conjugal life after the compromise.

Whether making phone calls to the second respondents including odd hours as well would constitute mental cruelty?

Husband had deposed that he overheard the intimate conversation between the wife and the second respondent and on questioning, she told him that the second respondent was having more right over her body and mind than him.

Another pertinent fact was that the wife deposed that she used to call the second respondent only on certain days, though the documentary evidence proved otherwise.

Making discreet phone calls frequently by the wife with another man disregarding the warning of the husband, that too at odd hours, amounts to matrimonial cruelty.

Initiation of false complaint by wife against husband, mother-in-law and sister-in-law

High Court expressed that making false complaints and initiating false criminal prosecution by one spouse against other constitutes mental cruelty.

In K. Srinivas v. K. Sunitha, (2014) 16 SCC 34, Supreme Court held that filing false complaint against husband and his family members under S.498A and S.307 of Indian Penal Code will amount to matrimonial cruelty defined under S.13(1)(ia) of Hindu Marriage Act.

In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, it was held that making false complaints before the police and authorities causing innumerable mental stress and making false and defamatory allegations will amount to mental cruelty.

High Court opined that the initiation of criminal prosecution was false.

Mental Cruelty was clearly constituted, the Court remarked on noting that the wife kept making continuous telephonic interaction with the second respondent ignoring the warning given by the husband and false initiation of criminal prosecution by the wife against husband and his parents after the reunion and the said are sufficient to revive the past acts of proved cruelty.

Both husband and wife had been living separately since 2012, hence a case for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act was made out.

Another petition with regard to the return of gold ornaments allegedly encrusted by the husband was filed by the wife and as per the husband’s pleadings, he was the entrusted trustee in so far as the said ornaments and money entrusted to him were concerned and the gold ornaments and money were a trust property in the hands of the husband. Hence, he was bound to account to the wife at any time when she demands.

The court below on evaluation of evidence found that the entrustment of 20 sovereigns of gold ornaments as well as `1,00,000/- by the wife to the husband stood clearly proved, hence this Court did not take a different view and confirmed the earlier Court’s decision.

Custody of Child

The Bench reiterated the settled position, that the welfare of the child is of paramount consideration in matters relating to the guardianship and custody of the child.

High Court stated that nowhere it was mentioned that the child was neglected or not taken care of by the mother, in fact, the evidence on record would show that the child had been given proper care and education by the mother.

Husband had already failed to prove the alleged adulterous act by the wife and Court below had found that considering the welfare of the child, the mother had to be appointed as the guardian.

Lastly, the Court added that the husband was free to move the Family Court to modify or vary the visitation right granted including seeking contact rights.

In view of the above discussion, the marriage between the husband and wife was dissolved.[XXX v. XXXXX, 2021 SCC OnLine Ker 3229, decided on 6-8-2021]


Advocates before the Court:

For the Petitioner:

T.M. Raman Kartha and Syama Mohan, Advocates

For the Respondents:

Anjana, R. Priya, M.B. Sandeep and B. Surjith, Advocates

Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to maintenance to wife, Subramonium Prasad, J., held that the fact that the wife is capable of earning is no ground to deny interim maintenance to her. Many a times wives sacrifice their career only for the family.

Instant petition was filed by an Indian Army colonel to set aside the order passed by Family Court wherein the Court passed an order under Section 125 CrPC directing the petitioner to pay monthly maintenance of Rs 33,500 to the respondent.

Revisionist Petitioner submitted that there were glaring inconsistencies that were in the order as a result of suppression of facts made by the respondent. He contended that the respondent was disqualified from being given maintenance as she was in an adulterous relationship and was living in adultery with an army senior of the petitioner.

Further, he submitted that the respondent and her paramour were having an affair behind his back and the paramour was known to the couple as a family friend from the time they had gotten married in 2002.

Adding to the above, it was submitted that Section 125(4) CrPC was attracted which stated that a person living in adultery would not be eligible for claiming maintenance from her separated spouse.

Petitioner submitted that the respondent was disqualified from receiving maintenance on the ground that she was employed as a teacher previously and was making a living. Respondent had an earning capacity and could maintain herself without the financial support of the petitioner as sanctioned by law.

Submission of the respondent’s maintenance claim was to be decided in accordance with the Army Order, the same would be decided by the Army Officials of the Armed Tribunal and the jurisdiction exercised by the Family Court was wrong and improper. Hence, the entire proceedings before the family court were null and void.

Petitioner lastly submitted that the respondent had suppressed the fact that she was capable of earning.

Analysis, Law and Decision

While analyzing the matter, High Court noted that the material on record disclosed that the children were with the petitioner from 2015 and hence the respondent was not entitled to two shares and Trial Court ought to have granted Rs 14, 615 per month as interim maintenance to the respondent.

Bench expressed that the petitioner’s contention that he was covered by the Army Order and therefore trial court fixing maintenance was contrary does not hold water.

It cannot be said that the Army Order would override the provisions of Section 125 Cr.P.C and that the Army personnel are covered only by the Army Order and that Section 125 Cr.P.C would not apply to Army Personnel.

 With regard to the contention of the wife living in adultery, she raised a very interesting counter-argument that one incident of adultery cannot lead to a conclusion that she is living in adultery.

Court referred to the decision dated 22-8-2020 regarding custody of children to the father which did not conclusively prove that the wife committed adultery or was living in adultery.

Examining the above contention further, High Court stated that it will not go into the issue of whether the wife is living in adultery or not.

The Bench added that if it was conclusively proved that the respondent was living in adultery and was not entitled to maintenance at all, the trial court could pass appropriate order for the return of the maintenance amount if it deemed it fit and keeping in mind the object of Section 125 CrPC was to prevent vagrancy and destitution of a deserted wife.

Hence, revision petition was allowed in part and the petitioner was directed to pay a sum of Rs 14, 615 as interim maintenance to the wife.

“This Court is not inclined to disturb the portion of the impugned order which has directed the petitioner herein to pay a sum of Rs 9,000/- per month to the respondent herein w.e.f. date of filing of the petition till December, 2016.”

In view of the above, a revision petition was allowed in part. [Col Ramnesh Pal Singh v. Sugandhi Aggarwal, 2021 SCC OnLine Del 5497, decided on 21-12-2021]


Advocates before the Court:

For the Petitioner: Petitioner-in-person

For the Respondent: Respondent -in-person

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., dissolved a marriage while exercising its jurisdiction under Article 142 of the Constitution of India as the marriage was emotionally dead.

Appellant had married respondent and registered the same under the Special Marriage Act, 1954. Thereafter the marriage was solemnized under Hindu rites and customs.

Appellant filed a suit for dissolution of marriage alleging cruelty and desertion by the respondent, but the suit was dismissed by the District Judge and further the Calcutta High Court upheld the Trial Court’s decision.

Respondent accused the appellant of adultery and excessive consumption of alcohol.

Senior Counsel, Nikhil Nayyar for the appellant submitted that appellant and respondent have been living separately for more than 16 years and for all practical purposes the marriage is dead.

Supreme Court requested Mr Ranjan Mukherjee to assist this Court as Amicus Curiae on behalf of the respondent as she did not engage an Advocate.

Amicus informed the Court that the respondent intended to continue to live with the appellant. Mr Mukherjee also brought to Court’s notice that the respondent has to take care of her son who is suffering from serious ailments.

This Court in Munish Kakkar v. Nidhi Kakkar, (2020) 14 SCC 657, had put an end to the bitter matrimonial dispute which lingered on for two decades between the parties.

In Court’s opinion, the marriage between the parties was emotionally dead and there was no point in persuading them to live together anymore.

Hence, the present matter was found fit for exercise of jurisdiction under Article 142 of the Constitution of India and the marriage was dissolved.

In light of the submission of Mr Mukherjee, Court directed the appellant to pay Rs 25 lakhs to the respondent and the maintenance petition filed by respondent shall be withdrawn once the payment of the said amount is made.

In view of the above appeal was disposed of.[Subhranshu Sarkar v. Indrani Sarkar (Nee Das), 2021 SCC OnLine SC 720, decided on 14-09-2021]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J., acquitted a person convicted under Section 497 of IPC contrary to the law laid down by the Supreme Court in Joseph Shine v. Union of India, (2019) 3 SCC 39, wherein Section 497 of IPC had been declared unconstitutional by the Supreme Court. The Bench stated,

“As per Article 141 of the Constitution, the law declared by the Supreme Court is binding on all the courts within the territory of India and the law laid down by the Supreme Court applies to all pending proceedings.”

 The instant revision petition had been filed to assail the judgement of Additional Sessions Judge-VII, in Criminal Appeal whereby the Sessions Court had affirmed the judgment of conviction and the order of sentence of the petitioner under Section 497 of the Penal Code, 1860 passed by the Trial Court.

The prosecution case was that the Informant’s wife namely, Nirmala Devi was absent in his house since 25-12-2000 at about 06:00 pm and he was informed by his nephew that on the same day, Nirmala Devi had fled away from the house towards south with the petitioner and when he saw her and asked her as to where she was going, they scolded him and told him not to disclose to anyone and after showing an arm, the petitioner threatened to kill him. It was further alleged that there was illicit relationship between Nirmala Devi and the petitioner. The Trial Court convicted the petitioner under Section 497 and sentenced him to undergo Rigorous Imprisonment for two years. However, the Trial Court acquitted Nirmala Devi from the charges under Sections 497 and 380 of Penal Code and also acquitted the petitioner from the charge under Section 380.

The grievance of the petitioner was that he had been convicted under Section 497 which had been declared unconstitutional by the Supreme Court in the case of Joseph Shine v. Union of India, (2019) 3 SCC 39, and therefore, once the Section itself had been declared ultra-vires to the Constitution, no conviction under Section 497 could be sustained. The Bombay High Court in Rupesh v. Charandas, 2018 SCC OnLine Bom 6292, had followed the judgment of the Supreme Court passed in the case of Joseph Shine case and had set aside the conviction and sentence under Section 497 of the Penal Code under revisional jurisdiction. The petitioner further contended that the evidences on record would show that the he had been convicted on the basis of hearsay evidence and presumption and accordingly, the prosecution had not been able to prove the case beyond all reasonable doubt.

Findings of this Court

The Court opined that the Supreme Court had struck down Section 497 as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution of India; Section 198(2) CrPC, which contains the procedure for prosecution under Chapter XX IPC was also held to be unconstitutional only to the extent that it is applicable to the offence of adultery under section 497 IPC. As per Article 141 of the Constitution, the law declared by the Supreme Court is binding on all the courts within the territory of India and such law applies to all pending proceedings.

Upon perusal of the aforesaid decision of the Supreme Court in Joseph Shine case, the Bench stated that,

“There is no indication that the same would apply prospectively and there is nothing like any prospective operation of law laid down by the Supreme Court.”

Hence, the Court was of the view that the instant revision petition was admitted on 06-12-2013 and the petitioner was directed to be released on bail. During the pendency of the revision petition, the section in which the petitioner was ultimately convicted i.e Section 497 IPC, had been declared to be unconstitutional in the case of Joseph Shine v.Union of India,(2019) 3 SCC 39. Therefore, the Court held that the conviction and sentence of the petitioner under Section 497 of was legally not sustainable and both the impugned judgments and sentence need to be interfered under revisional jurisdiction to prevent miscarriage of justice to the petitioner.  Accordingly, the impugned judgment and order was set aside and the petitioner was discharged from the liability of his bail bond.[August Kumar Mehta v. State of Jharkhand, 2021 SCC OnLine Jhar 429, decided on 23-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Advocate Amit Kumar Das

For the State-Opp. Party: A.P.P. Vandana Bharti

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial appeal filed on behalf of the husband, held that,

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery.

Petitioner being aggrieved by the Family Court’s decision of dismissal of his petition wherein he sought dissolution of his marriage with respondent 1 under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955, filed the present appeal.

It has been alleged that right after the marriage wife of the petitioner had started showing her disinterest in the marriage, he states that respondent 1/ wife had allegedly abused the appellant/husband and his family members and proclaimed that she had no interest in the marriage.

Further she even disclosed of having a love affair with respondent 2 and that she desired to marry him.

Late after a few months, she left with all the valuables and leaving a letter in which she stated that she will not return back and preferred to live her life with respondent 2.

However, respondent 1/wife was brought back by her brother but appellant/husband did not allow her to enter the house.

Thus, in view of the above facts, petition for divorce was filed.

Respondent’s Stand

Wife/Respondent 1 while opposing the divorce petition admitted that she had disclosed about her previous affair but claimed that it was only after long discussions with her husband and his family members.

Further she submitted that the husband’s family had started harassing and torturing her for dowry and pressurised her to bring a luxury car which she could not fulfill.

Withe regard to above letter mentioned, she submitted that her sister-in-law had compelled her to write whatever husband’s family members forced her to write and sign.

On one incident, an actual attempt was also made to kill her by pressing her neck and she was saved only because neighbours had gathered on hearing her cries.

Her in-laws hatched a conspiracy to kill her by suffocating her with a pillow. During the said incident, she had received injuries on various parts of her body. The appellant/husband and his family members thought that she might die and so, she was thrown near her parental village.

A complaint against the appellant/husband and his family members under Section 498-A, 307, 504 and 506 of Penal Code, 1860 had been filed.

Analysis and Decision

Bench while analysing the the matter noted that the appellant failed to prove his entitlement to divorce in the grounds of adultery under Section 13(1)(i) of the Act.

Further the Court observed that,

Cruelty is no doubt, not measurable as a tangible commodity, but the standard for determining as to whether a particular conduct amounts to cruelty or only to normal wear and tear of marriage, has been the subject matter of several decisions of the Supreme Court.

Cruelty

Court also relied on the Supreme Court case: V. Bhagat v. D. Bhagat, AIR 1994 SC 710, wherein the following was held:

Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.

As per the incidents stated by the appellant none of them, if at all committed, amount to “cruel” conduct.

To the above, bench stated that, a new bride would be hesitant in her new surroundings in the matrimonial home.

It is always for the husband’s family to make the new bride feel at home and accepted as a family member. Therefore, such conduct of the respondent 1/wife of being interested in remaining in her room or not showing initiative in doing household work can by no stretch of imagination be described as cruel behaviour.

Thus, in Court’s opinion, Family Court’s conclusion including the observation of accusation of adultery being heaped by the appellant/husband on respondent 1/wife are without any proof.

Thus the present appeal of the husband was dismissed in the above view. [Vishal Singh v. Priya, 2020 SCC OnLine Del 638 , decided on 12-06-2020]

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., dismissed the petitions filed by the petitioner questioning the order of denial of maintenance to her.

The petitioner was a divorced wife. The respondent (ex-husband of the petitioner) had attained a decree of divorce against her under Section 13 of the Hindu Marriage Act, 1956, on grounds of adultery. The said decree had attained finality.

Thereafter, the respondent (ex-husband) moved an application under the provisions of Section 125(4) of CrPC for cancellation of maintenance granted to the wife. The said application was rejected in the first instance by the trial court but was allowed on revision by the Additional Sessions Judge. Aggrieved thereby, the petitioner filed the instant petitions.

Mahendra B. Deshmukh, counsel for the petitioner, submitted that even if there is a decree of divorce passed on the allegation of adultery, still bar under sub-section (4) of Section 125 CrPC, will not be attracted. It was contended that even after divorce, the petitioner continued to be a woman under Explanation (b) of sub-section (1) of Section 125. Per contra, Kavyal P. Shah, counsel for the respondent, submitted that the statutory embargo under sub-section (4) applied to the instant case.

Notably, sub-section (4) Section 125 CrPC says:

“(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

Considering the rival submissions, the High Court observed: “The fact remains that, there is an expressed embargo on the right of a woman to claim maintenance, pursuant to the provisions under sub-section (4) of Section 125 CrPC, If the allegation of adultery is proved against such a women or in spite of the husband being ready to maintain her and she refuses to cohabit the women/wife can be refused payment of maintenance.”

In such view of the matter, the Court found no merit in the instant petitions. Accordingly, the petitions were dismissed.[Sanjivani Ramchandra Kondalkar v. Ramchandra Bhimrao Kondalkar, 2019 SCC OnLine Bom 6581, decided on 18-12-2019]

Case BriefsHigh Courts

Sikkim High Court: Arup Kumar Goswami, CJ., dismissed the petition against the refusal to pay maintenance to the wife because she allegedly committed adultery.

The parties were married to each other but had three daughters out of wedlock. The husband with the help of the second daughter threw out the wife alleging that she had an extramarital affair. The wife alleged that she was mentally and physically tortured by the husband and had to live with her brother. The second daughter stated that she witnessed her mother commit adultery as she was in a room with another man. The petitioner moved the High Court when the Family Court allowed the wife’s claim of maintenance.

Advocate Gita Bista on behalf of the petitioner argued that the daughter saw her mother with another man inside a room and there is no reason as to why a daughter would depose falsely against her own mother, implying that wife left her husband on her own volition and hence is not entitled to any maintenance.

Legal Aid Counsel, Tashi Norbu Basi on behalf of the respondent contended that there is no conclusive proof that the wife committed adultery; they might be in the same room for some other purpose. He further submits maintenance can be denied if she is living in adultery, which is not the same thing as a single lapse from virtue.

The Court concluded that the wife hadn’t eloped but rather was forced out of her matrimonial home and that the allegations made by the husband of his wife having extramarital affairs were false as he did it with a number of people including her brother too. Further, the court stated that if the wife leaves the house of the husband because of torture and constant allegations, it cannot be said that there is no sufficient reason for the wife to leave her husband.

In the case of M.P. Subramaniyam v. T.T. Ponnakshiamal 1957 SCC Online Kar 18, Karnatka High Court considered the term “living in adultery” appearing in Section 488(4) of the Code of Criminal Procedure, 1898   which is also used in Section 125(4) of the CrPC. The Court concluded that it is not a stray act or two of Adultery that disentitles the wife from claiming maintenance from her husband, but it is a course of continuous conduct on her part it can be said that she is living an adulterous life that takes away her right to claim maintenance. There was no evidence of a continuous course of conduct demonstrating that the wife was living in adultery, hence, she can claim maintenance. [Suk Bir Chettri v. Jamuna Chettri, 2019 SCC OnLine Sikk 185, decided on 08-11-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed the application of the petitioner to set aside the order granting maintenance to his wife when the divorce was granted on account of adultery on the wife’s part.

The petitioner filed an application under Section 19(4) of the Family Courts Act, 1984, against the order dated passed by the Principal Judge, Family Court, Vaishali at Hajipur which directed the petitioner to pay Rs 8,000 per month as maintenance to his wife. The order was delivered ex parte and there was no valid service of notice on the petitioner during the proceeding and, thus, he was unaware of the same. The revision petition was filed within the limitation period.

The impugned order was passed under Section 125 of the Code of Criminal Procedure, 1973 which excludes a wife living in adultery from being entitled to receive any maintenance. It was submitted that in Divorce Case filed by the petitioner against the opposite party and one Sunny

Rajak, the Principal Judge, Family Court, Samastipur by judgment dated 11-10-2017, had dissolved the marriage between the petitioner and the opposite party on the ground that she was living in adultery with Sunny Rajak. It was submitted that in the said case, Sunny Rajak had contested the suit whereas the opposite party had chosen not to contest. The learned counsel submitted that once a competent Court had held the opposite party to be living in adultery with Sunny Rajak, Section 125(4) of the Code disentitles her to any maintenance from the petitioner.

The opposite party submitted that they have challenged the decree of divorce which was still pending.

The Court held that the order passed in the Maintenance Case No. 84 of 2016, could not be sustained. Section 125(4) of the Code clearly debars a wife living in adultery from receiving any maintenance from her husband. In the present case, the marriage between the parties was dissolved on the grounds that the opposite party was found to be living in adultery with one Sunny Rajak.  Further, the Court also that mere pendency of an appeal against the order dissolving the marriage, inter alia on the ground of adultery, which till date was neither disposed of nor any interim stay of such order was granted, cannot be a ground to uphold the order impugned.

In view of the above-noted facts, the instant application was allowed and the order in the Maintenance Case was set aside.[Rajesh Rajak v. Rinku Devi, 2019 SCC OnLine Pat 1521, decided on 30-08-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. while hearing a revision petition, remitted a matrimonial case to the Family Court, Kalpetta for consideration and disposal afresh, after hearing both the parties.

Revision petitioner herein sought maintenance in Family Court, Kalpetta, from the respondent-husband. She was aggrieved by the judgment that dismissed her plea to seek maintenance on the ground that she had engaged in adultery, and also because she was employed and getting enough income to maintain herself. Hence, she filed the instant revision petition.

The petitioner contended that there was no visual or documentary evidence produced by the respondent to prove an act of adultery. The decision was passed on the basis of the respondent submitting one instance of lapse of virtue on the part of the petitioner. 

It was submitted before the Court that it is a common fact as held by the same court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 that to constitute an act of adultery, there should be a continuous course of conduct or living in the state of quasi-permanent union with the adulterer, and in the case of unchastity or a few lapses of virtue, it will not prevent a wife from claiming maintenance from her husband. As there was no evidence to prove the continuation of adultery, the revision petitioner had stated the judgment of the Family Court to be legally unsustainable.

It was further contended that the Family Court Judge failed to consider the status of her employment in light of Chaturbhuj v. Sitabhai, (2008) 2 SCC 316 that the term “unable to maintain herself” means the inability of the wife to maintain herself in the same manner in which she used to live with her husband, and will not take into consideration the efforts of the wife to maintain herself after desertion. The petitioner provided a certificate as evidence that she was not employed as staff but was kept as a data entry operator apprentice and was only given money to manage the expenses for bus charges, etc.

Owing to the aforementioned contentions, this Court directed the Family Court to reconsider the case in detail by hearing both the sides, and pass an order disposing of the case, without any delay within a period of three months from the date of production of a certified copy of this judgment. [Faseela v. Shafeek, RP (FC) No. 115 of 2019, decided on 23-05-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceeding filed in the year 2013 under Section 497 of the Penal Code, 1860 against a person accused of adultery, in view of Supreme Court’s decision in Joseph Shine v. Union of India, (2019) 3 SCC 39.

Petitioner herein had filed a complaint case against the opposite party 2 alleging adultery with his wife, wherein the Chief Judicial Magistrate issued summons under Section 497 of the Penal Code, 1860. The said order of cognizance was challenged by opposite party 2 before the Sessions Judge by way of a criminal revision petition, and the order of cognizance was set aside. Aggrieved thereby, the instant application was filed under Section 482 of the Code of Criminal Procedure, 1973 praying for setting aside of order dated 22-09-2014.

Counsel for the parties Mr Prabhu Narayan Sharma (for petitioner), Mr Md. Arif (for State) and Mr Saket Tiwary (for opposite party 2) submitted that the aforesaid issue was no more res integra for the reason that a Constitution Bench of the Hon’ble Supreme Court had held Section 497 IPC to be unconstitutional and has also declared Section 198 CrPC, which deals with the procedure for filing complaint in relation to an offence of adultery, as unconstitutional.

In view of the above, the Court held that cognizance against the opposite party 2 under Section 497 IPC could not be sustained. Thus, the entire criminal proceeding arising out of complaint case was quashed.[Devraj Dev v. State of Bihar, 2019 SCC OnLine Pat 431, Order dated 02-04-2019]

Hot Off The PressNews

In the southeast Asian nation of Brunei a new law proposed Homosexuality and Adultery to be punishable by death.

As per the new law, anyone found to be guilty of the offenses will be stoned to death. The capital punishments are to be “witnessed by a group of Muslims.”

Beginning on April 3, any individuals found guilty of the offenses will be stoned to death, according to a new penal code.

The new penal code was announced in May 2014, by the Sultan of Brunei, Hassanal Bolkiah, who also acts as the country’s prime minister. In announcing the change, government’s website quoted the Sultan saying that his government “does not expect other people to accept and agree with it, but that it would suffice if they just respect the nation in the same way that it also respects them.”

[Source: CNN]

Image Credits: CNN

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

Introduction

The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

Under Indian law, Section 497 IPC  makes adultery a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. The offence of adultery under Section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.

Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the offence of adultery[3] which have been held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

 Penal Code

Section 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 a case, the wife shall not be punishable as an abettor.

 Criminal Procedure Code

Section 198. Prosecution for offences against marriage. —  (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

* * * * * * * * * *

(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.

* * * * * * * * * *

Classification of offence

The offence of adultery is non-cognizable (a case in which a police officer cannot arrest the accused without an arrest warrant). Also, it is a bailable offence.

Compoundable offence

The offence of adultery is compoundable by the husband of the woman with whom adultery is committed. Compoundable offences are those where the court can record a compromise between the parties and drop charges against the accused. [Section 320 CrPC].

Cases

Offence of adultery held unconstitutional: Understanding Joseph Shine v. Union of India

Sections 497 IPC and 198(2) CrPC insofar it deals with the procedure for filing a complaint in relation to the offence of adultery, are violative of Articles 14, 15(1) and 21 of the Constitution, and are therefore struck down as being invalid, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

This Note hereinafter discusses various observations of the Supreme Court in Joseph Shine case.

Object

The object of Section 497 is to preserve sanctity of marriage. The society abhors marital infidelity.[4]

However, this object does not find favour with the Supreme Court. In Joseph Shine, the Court observed thus:  

“… the ostensible object, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 at all …”

It was further observed that the sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow which is not penalised by the legislature. Also, if the husband consents or connives at the sexual intercourse that amounts to adultery, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.

History

Section 497 is a pre-constitutional law which was enacted in 1860. At that point of time, women had no rights independent of their husbands, and were treated as chattel or “property” of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft” of his property, for which he could proceed to prosecute the offender.

The first draft of the IPC released by the Law Commission of India in 1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence. The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Ingredients

In order to constitute the offence of adultery, the following must be established:–

(i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

After stating the ingredients as mentioned above, the Supreme Court in Joseph Shine goes on to discuss the vice of unconstitutionality inherent in the offence of adultery, as may be seen presently.

Who may file a complaint

Only husband of the woman with whom adultery is committed is treated as an aggrieved person and only he can file a complaint. However, in his absence, some other person who had care of the woman on his behalf at the time when such offence was committed may file a complaint on husband’s behalf if the court allows. [Section 198(2) CrPC]

In Joseph Shine, this was held to be arbitrary and violative of constitutional guarantees as is discussed below.

Woman has no right to file a complaint

A wife is disabled from prosecuting her husband for being involved in an adulterous relationship. The law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Who can be prosecuted

It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual. The adulterous woman is not even considered to be an abettor to the offence. Woman is exempted from criminal liability.

Presence of an adequate determining principle for such classification was doubted in  Joseph Shine.

Woman treated as property of man

Historically, since adultery interfered with the “husband’s exclusive entitlements”, it was considered to be the “highest possible invasion of property”, similar to theft.[5]

On a reading of Section 497, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 497 violates Articles 14 [Equality before law]

Section 497 treats men and women unequally, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery. Additionally, if there is “consent or connivance” of the husband of a woman who has committed adultery, no offence can be established. The section lacks an adequately determining principle to criminalise consensual sexual activity and is manifestly arbitrary and therefore violative of Article 14, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 198(2) CrPC also violates Article 14 [Equality before law]

Section 198(2) CrPC does not consider the wife of the adulterer as an aggrieved person. The rationale of the provision suffers from the absence of logicality of approach and therefore it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of Article 15(1) [Prohibition of discrimination]

Article 15(1) prohibits the State from discriminating on grounds only of sex. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, the offence of adultery discriminates between a married man and a married woman to her detriment on the ground of sex only. The provision is discriminatory and therefore, violative of Article 15(1), Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of dignity of woman and Article 21 [Right to life]

Dignity of the individual is a facet of Article 21. Section 497 effectually curtails the essential dignity which a woman is entitled to have by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women.

Besides, the emphasis on the element of connivance or consent of the husband tantamount to the subordination of women. Therefore, the same offends Article 21, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of right to privacy and right to choose

This Court has recognised sexual privacy as a natural right, protected under the Constitution. Sharing of physical intimacies is a reflection of choice. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is a denial of this right, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Married woman’s sexual agency rendered wholly dependent on consent or connivance of husband

A man who has sexual intercourse with a married woman without the consent or connivance of her husband, is liable to be prosecuted for adultery even if the relationship is based on consent of the woman. Though granted immunity from prosecution, a woman is forced to consider the prospect of the penal action that will attach upon the individual with whom she engages in a sexual act. To ensure the fidelity of his spouse, the man is given the power to invoke the criminal sanction of the State. In effect, her spouse is empowered to curtail her sexual agency, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 497 denudes woman’s sexual autonomy

Section 497 denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Opposed to “constitutional morality”

It is not the common morality of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires enforcement of the constitutional guarantees of equality before the law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Premised on sexual stereotypes

Section 497 is premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. The notion that women are ‘victims’ of adultery and therefore require the beneficial exemption has been deeply criticized by feminist scholars, who argue that such an understanding of the position of women is demeaning and fails to recognize them as equally autonomous individuals in society[6], Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Breakdown of marriage

In many cases, a sexual relationship by one of the spouses outside of the marriage may lead to the breakdown of marriage. But often, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Case of pending divorce proceedings

Manifest arbitrariness is writ large even in case of a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If during this period, she has sex with another man, the other man is immediately guilty of the offence, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Whether adultery should be treated as a criminal offence?

Adultery is basically associated with the institution of marriage. Treating adultery an offence would tantamount to the State entering into a real private realm. Adultery does not fit into the concept of a crime. It is better to be left as a ground for divorce, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

International perspective

International trends worldwide indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Why did the Supreme Court not wait for the legislature and itself strike down the provisions?

These sections are wholly outdated and have outlived their purpose. Maxim of Roman law, cessante ratione legis, cessat ipsa lex [when the reason of the law ceases, the law itself also ceases], applies to interdict such law. Moreover, when such law falls foul of constitutional guarantees, it is Supreme Court’s solemn duty not to wait for legislation but to strike down such law, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Adultery continues to be a ground for divorce

There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

———————————————————————-

Further Suggested Reading

  1. Kumar Askand Pandey B.M. Gandhi Indian Penal Code (IPC) [Buy Here]
  2. C.K. Takwani – Indian Penal Code (IPC) [Buy Here]
  3. Surendra Malik and Sudeep Malik – Supreme Court on Penal Code Collection by Surendra Malik and Sudeep Malik [Buy Here]
  4. Dr. Murlidhar Chaturvedi – Indian Penal Code (Hindi) [Buy Here]

† Assistant Editor (Legal), EBC Publishing Pvt. Ltd.

[1] The New International Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.).

[2] Law Commission of India, 42nd Report, The Indian Penal Code, June 1971.

[3] V. Revathi v. Union of India, (1988) 2 SCC 72.

[4] Malimath Committee Report on Reforms of Criminal Justice System, March 2003, Vol 1.

[5] R v. Mawgridge, (1706) Kel 119.

[6] Malimath Committee Report on Reforms of Criminal Justice System, March 2003, Vol 1.

Image Credits: ndtv.com

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of M.G. Giratkar, J. allowed revision petition and set aside appellant’s conviction under Section 497 IPC in light of Supreme Court decision in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

The applicant was alleged to have had sexual relations with the complainant’s wife. He was tried and convicted by the trial court for committing the offence of adultery under Section 497 IPC. His appeal thereagainst before the Additional Session Judge was dismissed. Hence, then he filed the present application for revision. It was prayed that in light of the decision in Joseph Shine where the Supreme Court had held Section 497 to be unconstitutional, the present application ought to be allowed.

The High Court relied on A.S. Gauraya v. S.N. Thakur, (1986) 2 SCC 709 wherein it was held that a law declared by Supreme Court applies even to pending proceedings with retrospective effect. Hence, the Court gave a retrospective effect to the law laid down in Joseph Shine to the proceeding pending before it. The Supreme Court in Joseph Shine held Section 497 IPC and Section 198 (2) CrPC to be violative of Articles 14, 15(1) and 21 and therefore unconstitutional. Therefore, in view of Joseph Shine, the conviction and punishment awarded to the applicant under Section 497 was quashed and set aside. [Rupesh v. Charandas, 2018 SCC OnLine Bom 6292, dated 14-12-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., disposed of a revision petition filed against the order of the lower court, whereby the respondent was granted bail in a case related to the offences under Sections 457, 497 and 109 of the Ranbir Penal Code.

The main issue that arose before the Court was whether the lower court was justified in granting bail to the respondent.

One of the main contentions raised by the petitioner was that the respondent was a BSF officer i.e. he belonged to a disciplined and reputed force of this country and an offence of adultery committed by him on a woman, who was the school teacher, was an offence against the education system as well.

The Court observed that the offences under Sections 457 and 497 of the RPC are non-bailable. The lower court ought to have afforded an opportunity to the prosecuting agency to put forth objections before granting bail to the respondent, however the said opportunity was not given to the prosecuting agency and the respondent was granted bail as he himself surrendered before the court.

The Court held that the order passed by the lower court was not according to the law since it was passed without providing the prosecution an opportunity to place objections, as the offences for which the accused was charged were non-bailable offences. However, since a time of 6 years had already passed, the Court refused to cancel the bail granted to the petitioner by the lower court.[Mohd. Ayub v. Sudesh Kumar, CRR No. 56 of 2012, order dated 30-10-2018]

Case BriefsSupreme Court

The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites a wrath of the Constitution.

                                                  – Dipak Misra, CJI and A.M. Khanwilkar ,J.

Supreme Court: The 5-Judge Constitution Bench has held section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. CJ Dipak Misra delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions.

Before the Supreme court, in the writ petition, was the constitutional validity of Section 497 IPC which criminalizes adultery and Section 198 (2) CrPC which provides for offences against marriages. Petitioner submitted that the provision by its very nature is arbitrary and invited the frown of Article 14 of the constitution.

CJ Dipak Misra (for himself and A.M. Khanwilkar) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person. In regard to dignity to women and gender equality, it was observed that Section 497 curtails equality to and dignity of women by creating invidious distinctions based on gender stereotypes which creates a dent in the individuality of women. Besides, the emphasis on the element of connivance or consent of the husband tantamount to subordination of women. Therefore we have no hesitation in holding that the same offends Article 21 of the constitution.

In the words of the Court, “treating adultery an offense, we are disposed to think, would tantamount o the State entering into real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently the provision is reflective of a tripartite labyrinth. A situation maybe conceived of where equality of status and the right to file a case maybe conferred on the wife. In either situation, the whole scenario is extremely private.”

R.F. Nariman, J. In his concurring opinion referred to various religious testaments and texts as also law and judgments of various foreign jurisdictions. He observed that the ostensible object of Section 497, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 IPC. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence.

Dr D.Y. Chandrachud, J. also referred to foreign judgments and distinguished authors. Section 497 IPC is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. manifest arbitrariness is writ large on the provision.

Indu Malhotra, J., the only woman on the Bench traced the origin of the word adultery from the French language; and discussed the doctrine of coverture, historical background of Section 497 and contemporary international jurisprudence. She observed that the Section is replete with anomalies and incongruities which renders it liable to be struck down as arbitrary and discriminatory.

Resultantly, Section 497 IPC and Section 198(2) CrPC were struck down. And the decisions in Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 and V. Revathi v. Union of India, (1988) 2 SCC 72 were overruled. Justice Malhotra, in her opinion, delivered, also held W. Kalyani v. State, (2012) 1 SCC 358 as overruled. The petition was accordingly disposed of. [Joseph Shine v. Union of India,(2019) 3 SCC 39, decided on 27-09-2018]

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Supreme Court: A five-Judge Constitution Bench consisting of CJ Dipak Misra, R.F Nariman, A.M Khanwilkar, Dr D.Y Chandrachud and Indu Malhotra, JJ., pronounced the verdict for reconsideration of the judgments on the constitutional validity of Section 497 IPC that brings adultery into the box of criminalisation.

Legal subordination of one sex by another is wrong. Social progression of women and views of Justice Nariman in Triple Talaq case considered. Adultery can be grounds for dissolution of marriage: CJ Dipak Misra

CJ and Khanwilkar J.,  said that mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then if evidence produced, it could be treated as an abetment to suicide

Section 497 of the Penal Code is unconstitutional: CJ Dipak Misra

R F Nariman J.: Concurred with the opinion of CJ Dipak Misra. Section 497 of IPC has lost its rationale. It is manifestly arbitrary.

Dr D.Y. Chandrachud, J. : Section 497 is based on a notion that a woman loses her agency upon marriage. Human sexuality is essential aspect of identity of an individual.

Dr D.Y. Chandrachud, J. Section 497 is based on gender stereotypes. Violative of Article 15. Also violative of Articles 14 and 21. Declared as unconstitutional.

Indu Malhotra J., : Section 497 IPC makes two classification. Who can prosecute and who can be prosecuted. Law that perpetuate stereotypes and institutionalises discrimination is unconstitutional. Section 497 IPC is violative of Articles 14, 15 and 21 of the Constitution and therefore struck down.