V REVATHI Vs. UNION OF INDIA

JUDGEMENT

(1.) 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 anguishsed wife.

(2.) 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 S. 497, 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 S. 198(l) read with S. 198(2)1, Criminal P.C., 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 Art. 32 of the Constitution.

(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.