JOSEPH SHINE Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. Kaleeswaram Raj, learned counsel for the petitioner.

(2.) In this petition, preferred under Art.32 of the Constitution of India, the petitioner has challenged the constitutional validity of S.497 of the Indian Penal Code and S.198(2) of the Criminal Procedure Code. The said provisions read as under: "497. Adultery.-- Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor." 198. Prosecution for offences against marriage.-- (2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under S.497 or S.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.) Learned counsel submits that the said provisions have been treated to be constitutionally valid in three Judgments, namely, Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930 : AIR 1954 SC 321 ; Sowmithri Vishnu v. Union of India and Another, 1985 KHC 460 and V. Revathi v. Union of India and Others, 1988 KHC 58 . He has also drawn our attention to the decision in W. Kalvani vs. State through Inspector of Police and Another, 2011 KHC 5069 wherein a two - Judge Bench of this Court, after referring to the provision, observed thus: "10. The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence."