IN THE SUPREME COURT OF INDIA
|NAME OF THE CASE||Smt. Sowmithri Vishnu vs. Union of India & Anr|
|CITATION||Writ petition No. 845 of 1980|
|DATE OF THE JUDGEMENT||27 May 1985|
|RESPONDANT||Union of India & Anr|
|BENCH/JUDGE||Chief Justice Y.V. Chandrachud, R.S. Pathak, A.N. Sen|
|STATUTES/CONSTITUTION INVOLVED||Constitution of India; Indian Penal Code, 1860; Criminal Procedure Code, 1973|
|IMPORTANT SECTIONS/ARTICLES||Constitution of India, Arts. 14, Arts. 15, Arts. 21, Arts. 32Indian Penal Code, 1860, S. 497, S. 498Criminal Procedure Code, 1973, S. 198|
In the present case the Writ petition was filed by the petitioner in the Supreme Court of India under Article 32 of the Constitution, challenges the validity of Section 497 of the IPC which defines the offence of ‘adultery’. The petitioner sought for divorce from her husband on the grounds of desertion. According to the trial court, the petitioner herself had deserted the husband and not the other way around, and the petition was therefore dismissed.
After then, the husband filed a divorce petition against the petitioner on the grounds that she had deserted him and that she was having an extramarital affair with someone named Dharma Ebenezer.
In that petition, the petitioner acknowledged that a divorce decree could be issued against her on the grounds of desertion in light of the former proceeding’s decision that she had deserted her husband. The husband argued against that request. In his argument, he claimed that in addition to the grounds of desertion and adultery, he also had the right to obtain a divorce decree against the petitioner. The trial court agreed with the husband’s argument, but in a revision application submitted by the petitioner, the High Court accepted her argument and held that since the earlier petition’s findings were binding on the parties, a divorce decree had to be granted to the husband on the grounds of desertion and that, it was unnecessary to inquire into the question of adultery. The court dismisses the petitioner’s writ petition.
Adultery is a criminal offence, a man who engages in sexual activity with the wife of another man is guilty of adultery under Section 497 of the Indian Penal Code, 1860. In India, adultery laws have long been based on patriarchy and male chauvinism for ages. In India, adultery has long been viewed as wrong and disrespectful against the institution of marriage. Even in Manusmriti, Dharmashastras and Christianity, it is a shameful act and was punished with expulsion. In India, a women is not viewed as the perpetrator of an act but rather as the victim of a man’s seduction into committing the crime.
The term adultery has its origin in the Latin word “adulterium” which means for voluntary sexual intercourse between a married person with another. In India adultery is a ground for divorce as well as a crime under the IPC which treat adultery as an invasion of the right of the husband over his wife and put it under section 497 of the IPC. But recently the Supreme court of India has declared 150 years old law adultery as unconstitutional which treats a “husband as the masters of his wife” in the case of Joseph shine vs. Union of India.
Ingredients of Adultery:-
- There must be sexual intercourse
- Women must be married one
- The offender has knowledge or reasonable belief that the women is married
- Sexual intercourse was committed without consent or connivance of the husband of the women
- The offence must not amount to rape
- Wife shall not be punishable as an abettor
Section 497 not included in the first Draft Indian Penal Code prepared by Lord Macaulay. 42nd report of Law Commission of India retained section 497 of the IPC make women who commit adultery liable as well. 156th report of Law Commission of India remove exemption of women from prosecution. J. Malimath Committee, 2003 make section 497 of the IPC as gender neutral “whosoever has sexual intercourse with the spouse of any other person guilty of adultery”.
Divorce petition:-“In a divorce petition, a petition is drafted by one spouse (the petitioner) and served on the other spouse (the respondent). This petition is then filed in a state court of the country where one of the spouses resides. It does not matter where the marriage was solemnized. The petition includes important information related to the marriage like the name of spouses, any children, any common property, child custody or spousal support, etc.”
FACTS OF THE CASE
The factual matrix, in this case, is on the grounds of desertion, the petitioner sought for divorce from J. Vishnu Naidu, her husband in the petition filed by petitioner. However, the trial court rejected that petition on the grounds that the petitioner had herself left her husband and not the other way about.
Following that, the husband filed a petition for divorce against the petitioner (the wife) on the grounds that she had deserted him and that she was living in adultery with someone by the name of Dharma Ebenezer. In that petition, the petitioner acknowledged that a divorce judgement could be issued against her on the grounds of desertion in light of the former proceeding’s decision that she had deserted her husband. So far, so good. But the petitioner continued to argue that since it was unnecessary to do so, the court shouldn’t decide the issue of adultery. The husband disagreed with that request. He argued that there was no reason why he should be denied the chance to prove that the petitioner was living in adultery and that he was entitled to obtain a decree of divorce against the petitioner on the grounds of both adultery and desertion. The husband’s contention was accepted by the trial court but, in a revision application filed by the petitioner.
“The High Court accepted her plea and held that since, the finding recorded in the earlier petition was binding on the parties, a decree for divorce had to be passed in favour of the husband on the ground of desertion and that, it was unnecessary to inquire into the question of adultery. We are informed at the Bar that, pursuant to the High Court’s view; a decree for divorce has already been passed in favour of the husband on the ground that the petitioner had deserted him.”
A husband filed a charge against Dharma Ebenezer under section 497 of the IPC accusing him of having committed adultery with his wife while the divorce petition was still being processed. The petitioner has filed this writ petition to have that complaint dismissed on the grounds that Section 497 of the Indian Penal Code, which defines the crime of “adultery,” is unconstitutional.
ISSUE RAISED BEFORE THE COURT
- Whether Articles 14 and 15 of the Indian Constitution are violated by Section 497 of the IPC?
- Is the wife’s right to be heard and her consent for the act matter?
- Whether Article 21 of the Indian Constitution are violated by Section 497 of the IPC?
ARGUMENTS FROM THE APPELANT SIDE
- Learned counsel for the petitioner submitted that Section 497 of the Indian Penal Code violates Article 14 of the Constitution because it unfairly denies women the rights they are guaranteed to men by creating a distinction between men and women.
- Learned counsel for the petitioner also stated that Section 497 of the IPC gives the husband the power to bring charges against the adulterer, but it gives the wife no power to bring charges against the women her husband had an affair with or committed adultery.
- It is also stated that according to Section 497 of the IPC, the woman has no legal authority to bring charges against her husband for having an extramarital affair.
- Learned counsel on the behalf of petitioner expressed that section 497 of the IPC does not take in case where the husband has sexual intercourse with an unmarried women, with the result that husbands have a free licence under the law to have extramarital relationships with unmarried women.
- Mrs. Chidambaram, learned counsel for the petitioner has challenged the validity of Section 497 of the IPC on another ground, that it violates Article 21 of the Constitution. According to counsel, if a trial’s result is likely to have a negative impact on a person’s reputation, that person must have the right to present and be heard in that trial since the right to life also includes the right to reputation.
ARGUMENTS FROM THE RESPONDENT SIDE
- Learned counsel representing the respondent stated that the contentions despite the petitioner’s strong emotional appeal, there is no legal support for it. The counsel argued that adultery can only be committed by men because of its fundamental definition, and therefore by limiting the category of offenders to men, no constitutional right is violated.
- It is also expressed that it is commonly accepted that it is the man who is the seducer and not the woman. In order to protect the purity of the marriage household, the law encompasses men who commit adultery.
- Constitution of India
- Article 14:- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- Article 15:- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to.
(a) Access to shops, public restaurants, hotels and palaces of public entertainment or
(b) The use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
- Article 21:-Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Article 32:- Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).
- Indian Penal Code, 1860
- Section 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.
- Section 498:- Enticing or taking away or detaining with criminal intent a married woman.—Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
- Criminal Procedure Code, 1973
- Section 198:- Prosecution for offences against marriage.
(1) No Court shall take cognizance 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) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf.
(c) where the person aggrieved by an offence punishable undersection 494 or section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.
(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.
(3) When in any case falling under clause (a) of the proviso to subsection (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to subsection (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer.
(5) Any document purporting to be such an authorisation and complying with the provisions of sub- section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse the a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
The Hon’ble court remarked that after hearing the arguments from both parties, the writ petition filed by Sowmithri Vishnu was denied by the court, held that the issue which is raised by the petitioner have a strong emotional appeal but they have no valid legal basis to rest upon. The court ruled that adultery is a crime that can only be committed by a man, not a woman, by its very definition.
“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, is guilty of the offence of adultery”.
After hearing the arguments of both the sides, the court has determined that the definition should be revised to broaden the concept of adultery so that both men and women are subject to punishment for the offence of adultery. For example, “it is argued by the learned counsel that the offence of robbery should be punishable with imprisonment for ten years under section 392 of the IPC but the offence of adultery should be punishable with a sentence of five years only, Breaking into a matrimonial home is no less serious a crime than breaking open a house.” Such arguments focus on a law’s policy rather than its constitutionality, unless a constitutional provision is violated while the policy is being carried out. We cannot accept that any fundamental requirement has been violated by classifying adultery as a crime that only applies to male offenders. It is accepted that the men who is the seducer and not the women.
The court said that Rather than discussing upon this discussion, we could dismissed the writ petition by depending upon the decision of a constitution bench in the case of Yusuf Abdul Aziz vs. State of Bombaywhich held that section 497 of the IPC does not violate the Article 14 and 15 of the constitution.
The court ruled that divorce on the grounds of adultery under civil law is the only remedy available to erring couples who commit adultery against one another. The definition of “adultery” under civil law is broader than it is under the Indian Penal Code.
The court quashed the complaint of the petitioner on the ground that petitioner’s husband has already obtained divorce against her on the ground of desertion and court directed that no further proceeding will be taken.
According to me, the goal of the establishment of the adultery law from the beginning was to safeguard the marriage as an institution rather than to protect the sanctity of marriage. In the offence of adultery it is the men who is the seducer and not the lady.
Basically, it was claimed that section 497 of the IPC does not grant the wife the authority to bring legal action against her husband for having an extramarital affair. The law of adultery is striking in its pursuit to punish only the ‘outsiders’ who breaks into a marriage relationship and violates the pureness of marriage.
In the present case also the Supreme Court of India upheld the constitutional validity of the section 497 of the IPC which made adultery is a culpable offence. “Adultery dents the individuality of women and it is not a crime in countries like China, Japan and Australia. Adultery might not be cause of unhappy marriage, it could be result of an unhappy marriage”.
 Author is 3rd semester student of Amity Law School, Lucknow.
 Joseph Shine vs. Union of India (2019) 3 SCC 39.
 ESAHAYAK, https://esahayak.io/blog/how-to-file-a-divorce-petition-in-india/ (last visited Jul. 11, 2022).
 INDIA CONST. art. 14.
 INDIA CONST. art. 15.
 INDIA CONST. art. 21.
 INDIA CONST. art. 32.
 Indian Penal Code, 1860, §497.
 Indian Penal Code, 1860, §498.
 Code of Criminal Procedure, 1973, §198, No. 2, Acts of Parliament, 1973(India).
 Yusuf Abdul Aziz vs. State of Bombay, AIR 1954 SC 321.