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 anguished 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 prevision which disables the wife from prosecuting the husband for such an offence is embodied in S. 198 (1) read with S. 198 (2), 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.) S. 497, Penal Code, and S. 198 (1) read with S. 198 (2), criminal P G. go band 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 pot 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 (1) read with S. 198 (2) does not permit her to de 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 hat 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.