Judgment

THAKKAR, J. - 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.

* 1. "198. Prosecution for offence against marriage-

(1) No Court shall take cognizance of an offence punishable under Chapter XX, Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence :

Provided that -

(a) x x x x x

(b) x x x x x

(2) For the purposes of sub-s. (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. 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.

4. This very argument came to be debated before a Bench of this Court in Sowmithri Vishnu v. Union of India, 1985 (Suppl) SCC 137 in the context of a challenge to the constitutionality of S. 4972, Penal Code by an adulterer who had been prosecuted for the offence of adultery under S. 497*2, Penal Code, by the husband of the adulteress. Three grounds were pressed into service in support of the challenge rooted in Art. 14 of the Constitution in Sowmithri Vishnus case (supra). Ground No. 2 was in the following terms :-

* 2. "497. 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 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another wom