Supreme Court Judgment Declaring Offence Of Adultery U/S. 497 IPC Unconstitutional Has Retrospective Effect: Delhi High Court

The Petition before the High Court was filed under Section 482 of the Code of Criminal Procedure, 1973, for quashing of the Order of the ASJ whereby the Petitioner had been summoned under Section 497 of the Indian Penal Code, 1860 (IPC) in a Complaint Case filed by the husband.

Referring to the judgment in Joseph Shine v. Union of India (2018), the Single Bench of Justice Neena Bansal Krishna said, “The woman being considered as the property of the husband and its devastating consequences are well documented in Mahabharat wherein Draupadi was put on stake in a game of gamble by none other than her own husband Yudhishtra where other four brothers were the silent spectators and Draupadi had no voice to protest for her dignity. As it happened, she was lost in the game of gamble and what followed was the great war of Mahabharat leading to mass loss of lives and wiping out of many of the family members. Despite having such example to demonstrate the consequence of absurdity of treating of a woman as a chattel, the misogynistic mindset of our Society understood this only when the Apex Court declared Section 497 IPC as unconstitutional in the case of Joseph Shine (supra).”

Advocate J.S.Rawat represented the Petitioner while APP Meenakshi Dahiya represented the Respondent State.

Factual Background

The couple got married in the year 1998 and have two sons. The Complainant alleged that in August 2009 ,his wife started going to a Park near their house on the pretext of walking after dinner. He found that the Petitioner had been making regular calls to his wife varying from 2 minutes to one hour and even at odd hours in the night. He, thus, realised that his wife was having an extra marital affair with him.

According to him, his wife, along with the Petitioner, went to Lucknow where they stayed together as husband and wife and had sexual intercourse without the consent of the Complainant. On their return, he confronted his wife, who told him to leave if he had any problem with their relationship. He served a Legal Notice on his wife to restrain her relationship with the petitioner. Thereafter, he filed the Criminal Complaint came to be filed under Section 497 IPC. The M.M. discharged the Petitioner. However, this Order of discharge was set aside by the ASJ, and the Petitioner was summoned for the offence under Section 497 IPC.

Reasoning

The Bench explained that in order to constitute an offence of adultery, the following must be established:

• Sexual intercourse between a married woman and a man who is not a husband;
• Such man knows and has reason to believe that she is the wife of another person;
• Such sexual intercourse must take place with her consent i.e. it does not amount to rape; and
• Sexual intercourse with a married woman must take place without the consent or connivance of her husband.

“Section 497 IPC is restricted one as the consequence of which a man who is not a husband, in given circumstances, becomes criminally liable for having committed adultery, while in other situations being a husband, he cannot be branded as a person who has committed adultery so as to invite culpability of Section 497 IPC”, it said.

It was further noted that it was not the husband or the alleged adulterous wife, who is the accused for the offence under Section 497 IPC; rather it is the third person who allegedly has sexual intercourse with the wife of another man who becomes an accused person.

Another issue before the Bench was whether the declaration of Section 497 IPC as unconstitutional in Joseph Shine (supra) vide judgement dated September 27, 2018 is retrospective and would be applicable to the present case, which got initiated with a Complaint filed by the Husband on June 24, 2010.

The Bench referred to the judgment in Maj. Genl. A.S. Gauraya & Anr. Vs. S.N. Thakur (1986) wherein the Apex Court had held that a declaration of law by the Supreme Court applies to all the pending proceedings even with retrospective effect. “Therefore, the Complaint Case No.153/1 filed by Respondent No.2 on the allegations of Section 497 IPC against the Petitioner, is therefore, liable to be quashed”, it held.

As per the Bench, the M.M. had rightly noted that the case of the Petitioner was that since his wife, along with the Petitione,r stayed overnight in the same room in Piccadilly Hotel, Lucknow, there can be no presumption of them having indulged in sexual intercourse. “The gravamen of Section 497 is that they must have indulged in the act of adultery i.e. they must have had sexual intercourse for which there is no oral or documentary evidence, but is based on a presumption which cannot be considered prima facie for summoning of the Petitioner. The essential ingredients of Section 497 IPC, were therefore, not made out”, it held while setting aside the impugned summoning order and discharging the Petitioner.

Cause Title: A v. The State (Neutral Citation: 2025:DHC:2700)

Appearance:

Petitioner: Advocate J.S. Rawat

Respondent: APP Meenakshi Dahiya, Advocate Satish Kumar

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