IMPORTANT POINT
Adultery – Section 497 of Indian Penal Code which criminalized adultery is unconstitutional.

JUDGMENT

Arvind Kumar Verma, J.—The present criminal appeal filed under Section 374(2) of the Cr.P.C. has been preferred by the appellant being aggrieved by the impugned judgment dated 01.02.2016 passed in Sessions Trial No.04/2015 by the learned Session Judge, District Dhamtari, whereby the appellant has been convicted under Section 497 of Indian Penal Code and sentenced 04 years of rigorous imprisonment with fine of Rs.100/- and in default of fine amount additional rigorous imprisonment for one month.

2. Brief facts of the case are such that on 10.01.2015 prosecutrix has lodged a report against the appellant alleging that six years ago the appellant has married her in a secret manner on the pretext that when her younger sister will get married at that time he will marry her again by following proper rituals and customs. But in her report she alleged that even after five years of their marriage the appellant used to avoid her. She stated that from time to time she used to visit the house of the appellant and the family members of the appellant were well conversant about their secret marriage. In those five years of marriage she got pregnant several times but every time appellant used to make her abort the child and asked her to give him one and a half year time to get married in front of his family. Later on she came to know that the appellant one and a half year ago has married to some other lady. Based upon the aforementioned allegation the report was lodged against the appellant for the offence punishable under Section 376 of the Indian Penal Code.

3. On completion of investigation, charge-sheet was filed against the appellant before the concerned Trial Court. Charges were framed against the appellant for the offence referred to above and he denied the charges leveled against him and sought trial.

4. Prosecution in order to prove her case examined as many as six witnesses. Statement of the accused appellant was also recorded under Section 313 of CrPC in which he denied all the incriminating evidences available against him, pleaded innocence and false implication. Initially the appellant was charged under Section 376 of the Indian Penal Code, later on, on trial the appellant has been convicted under Section 497 of the Indian Penal Code stating that section 376 of the IPC is not made out against the appellant rather Section 497 of IPC is made out. Hence he was convicted under Section 497 of IPC.

5. Learned counsel for the appellant submits that Trial Court has convicted the appellant under Section 497 of the Indian Penal Code which is illogical and perverse. Rather the case of the appellant falls under the purview of Section 376 of the Indian Penal Code. The judgment of the learned trial court is wholly based on presumptions, surmises and flawed appreciation of the evidences. Hence he prays to set aside the impugned judgment dated 01.02.2016 passed in Sessions Trial No. 04/2015 by the learned Sessions Judge, Dhamtari and the appellant be acquitted in the interest of justice.

6. Per contra, learned counsel for the State submits that all the incriminating evidences are against the appellant and the case of the appellant wholly falls under the purview of Section 497 of the Indian Penal Code. Hence he opposes the prayer made by the learned counsel for the appellant.

7. I have heard learned counsel for the respective parties and perused the record with utmost circumspection.

8. Section 375 of the Indian Penal Code:-

A man is said to commit “rape” if he—(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes he