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PETITIONER: V. REVATHI

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT25/02/1988

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) DUTT, M.M. (J)

CITATION:  1988 AIR  835            1988 SCR  (3)  73  1988 SCC  (2)  72        JT 1988 (1)   419  1988 SCALE  (1)420

ACT:      Constitution of  India,  1950:  Art.  14-Constitutional validity of ss. 198(1) and 198(2) Cr. P.C.-Adultery-Right to prosecute husband not extended to the wife of the adulterer- Whether amounts  to hostile  discrimination on the ground of sex.      Criminal Procedure  Code,  1973.  Sections  198(1)  and 198(2)-Adultery-Right to  prosecute husband  not extended to the wife  of the  adulterer-Whether  hostile  discrimination violative of Art. 14 of the Constitution of India.

HEADNOTE: %      The constitutional  validity of Section 198 Cr.P.C. has been called  into question  by a  wife by way of the present petition under Article 32 of the Constitution of India.      The petitioner  wife contended  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.  The petitioner asserted that in so far as and to  the extent  Section 198(2)  of the  Code of Criminal Procedure operates  as a fetter on the wife in prosecutising her  adulterer   husband,   the   relevant   provisions   is unconstitutional on the ground of abnoxious discrimination,      Dismissing the petition, this Court, ^      HELD:  1.  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 adultery, not a woman. As between the husband and the wife social good will 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 the children are saved from the trauma of one of their parents being jailed 74 at the instance of the other parent. [77E-G]

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    2. Section 497 does not confer any right on the wife to prosecute  the  husband  who  has  committed  adultery  with another woman.  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. [77H; 78A-B]      Sowmithri Vishnu  v. Union  of  India  &  Anr.,  [1985] Suppl. SCC 137, referred to.       3. Section 198 Cr.P.C. is not vulnerable to the charge of  hostile   discrimination  against  a  woman.  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(1) read with section  198(2) does  not permit  her to do so. 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. [78C-E]

JUDGMENT:       CIVIL  ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 562 of 1986      (Under Article 32 of the Constitution of India.)      Ms. Geetha Ramaseshan and Ms. Seita Vaidilingam for the Petitioner.      D.N. Dwivedi, Ashok K. Srivastava and S. Suri for the Respondents. 75      The Judgment of the Court was delivered by      THAKKAR, J.  Not only the option to ’make up’ or ’break up’ but  also the  right to  ’haul up’  the  erring  husband before a  Criminal Court,  is claimed  by the aggrieved wife irrespective of  the fact that the husband of an erring wife does not  have a corresponding right. Or else the conscience of the  ’EQUALITY’ clause  will not  be appeased is the plea made by the anguished wife.      Accordingly, a  constitutional gun  has been pointed at the provision  which in  its effect permits only the husband of the  adulteress to  prosecute the  adulterer but does not permit the  wife of  the adulterer  to do  so. True  it  is, neither of  the spouses  can prosecute  each other.  But the aggrieved wife  complains that  to deny  her  the  right  to prosecute her  offending husband for the offence of adultery punishable under  Section 497 of the Indian Penal Code is to violate the  Constitution by  discriminating against  her on the ground of her sex.      The provision  which disables the wife from prosecuting the husband  for such  an offence  is  embodied  in  Section

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198(1) read  with Section  198(2)i of  the Code  of Criminal Procedure, 1973 which carves out an exception to the general rule that  any one  can set  the criminal law in motion. The constitutional validity of this provision which disables the wife from  prosecuting the  husband, has  been  called  into question by  a wife  by way  of the  present petition  under Article 32 of the Constitution of India.      Be it  realised that  Section 497  of the  Indian Penal Code is so designed that a husband cannot prosecute the wife for  defiling   the  sanctity  of  the  matrimonial  tie  by committing adultery. Thus the law 1. "198. Prosecution for offence against marriage-           (1) No  Court shall take congnizance 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:  Provided           that           (a) xxxxx           (b) xxxxx           (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." 76 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 Section 198(2) of the Code of  Criminal Procedure operates as a fetter on the wife in  prosecuting   her  adulterer   husband,   the   relevant provisions is  unconstitutional on  the ground  of obnoxious discrimination, she asserts.      This very argument came to be debated before a Bench of this Court  in Sowmithri  Vishnu v.  Union of  India & Anr., [1985] Suppl.  SCC 137  in the context of a challenge to the constitutionality of  Section 4972  of the Indian Penal Code by an  adulterer who  had been prosecuted for the offence of adultery under  Section 497  of the Indian Penal Code by the husband of  the adultress.  Three grounds  were pressed into service in  support of the challenge rooted in Article 14 of the  Constitution   of  India  in  Sowmithri  Vishnu’s  case (supra). Ground No. 2 was in the following terms:           "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,  CJ. spoke thus on behalf of the Court:           "In so  far as  the second of the three grounds is           concerned,  Section  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

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         abettor. No  grievance can  then be  made that the           section does not allow 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." 77           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           the author  of the  crime. The offence of adultery           as defined  in Section  497 is  considered by  the           legislature as  an offence against the sanctity of           the matrimonial  home, and  act which is committed           by a man, as it generally is. Therefore, those men           who defile  that sanctity are brought with the net           of the  law. In  a sense,  we revert  to the  same           plint. Who  can prosecute  who for  which  offence           depends firstly,  on the definition of the offence           and, secondly, upon the restrictions 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 Section 497 of  the Indian  Penal Code. The same bullet has now been fired in  order to  assail Section  198(2) of  the  Criminal Procedure Code  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, in as much 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  good will  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.      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 78 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

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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.      The provision  in question  is therefore not vulnerable to the  charge of hostile discrimination against a woman and cannot be  successfully assailed  from  that  platform.  The petition must therefore fail and be dismissed. G.N.                                      Petition dismissed 79