IMPORTANT POINT
Husband concerned alone is having legal right to file a complaint if offence is adultery.

B.Sudheendra Kumar, J.—The accused in C.C.No.158/2003 on the files of the Court of the Judicial Magistrate of First Class-II, (Mobile) Kozhikode, filed this Revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 497 IPC. The above case arose out of a private complaint filed by the second respondent herein before the trial court alleging offence under section 497 IPC.

2. The prosecution case can be briefly stated as follows:-

The second respondent herein married Shelvi on 8.12.1989 as per the customary rites and ceremonies of the parties. Thereafter, they lived together as husband and wife. Two children were born in the said wedlock. The revision petitioner was an auto rickshaw driver. He used to take the children of the second respondent to the school in his auto rickshaw. The second respondent was a fisherman. He used to go for his work at about 8.00 a.m., and come back to his house only at about 5.00 p.m. The wife of the second respondent, namely, Shelvi alone used to be in the house when the children were sent to the school. While so, the wife of the second respondent developed intimacy with the revision petitioner. It was noticed by PW2 that the revision petitioner spent much time in the house of the second respondent on 5.12.1998. On getting suspicion, PW2 peeped through the half wall of the said house. Then PW2 found the wife of the revision petitioner namely, Shelvi, indulging in sexual relationship with the revision petitioner. PW2 warned him not to repeat the same. On 27.12.1998 also, PW2 and another person witnessed sexual relationship between the wife of the second respondent and the revision petitioner. On seeing PW2 and the other person, the revision petitioner ran away from there. The matter was informed to the second respondent herein by PW2 and the other person. The revision petitioner was well aware that Shelvi was the legally wedded wife of the second respondent. The above said act of the revision petitioner was without the consent or connivance of the second respondent herein.

3. Before the trial court, PW1 and PW2 were examined and Ext.P1 was marked for the complainant. No evidence was adduced on the side of the revision petitioner.

4. The trial court, after considering the evidence on record, found the revision petitioner guilty under Section 497 of I.P.C., and convicted him thereunder and sentenced him to rigorous imprisonment for one year and a fine of Rs.2000/- with a default clause for simple imprisonment for two months. The appeal filed against the said conviction and sentence was dismissed by the appellate court.

5. Service is complete on the second respondent. However, there is no appearance for the second respondent.

6. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

7. The learned counsel for the revision petitioner has argued that since the complaint was filed by the second respondent after obtaining divorce, the second respondent ceased to be the husband of Shelvi at the time of filing the complaint and consequently, the trial court ought not to have taken cognizance of the offence on the basis of the complaint filed by the second respondent herein. The learned Public Prosecutor has also fairly submitted that since the second respondent was not having the status of the husband of Shelvi at the time of filing the complaint, the trial court ought not to have taken cognizance of the offence on the basis of the said complaint.

8. Section 497 defines the offence of adultery. The said section falls under Chapter XX of the Indian Penal Code. Chapter XX deals with offences relating to marriage. Section 198 of the Criminal Procedure Code (for short ‘the Code’) imposes certain restrictions in launching prosecution for offences against marriage. As per the said provision, no court shall take cognizance of any of the offences punishable under the aforesaid Chapter XX except upon a complaint by some pers