ITEM NO.53 COURT NO.1 SECTION PIL-W S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Writ Petition (Criminal) No.194/2017 JOSEPH SHINE Petitioner(s)

VERSUS UNION OF INDIA Respondent(s)

(With appln.(s) for intervention/impleadment)

Date : 05-01-2018 This petition was called on for hearing today.

CORAM :

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y. CHANDRACHUD For Petitioner(s) Mr. Kaleeswaram Raj, Adv.

Mr. Suvidutt M.s., AOR For Respondent(s) Mr. R. Balasubramanian, Adv.

Mr. B.V. Balram Das, Adv.

Mr. Sachin Sharma, Adv.

UPON hearing the counsel the Court made the following

O R D E R

Heard Mr. Kaleeswaram Raj, learned counsel for the petitioner and Mr. R. Balasubramanian, learned counsel along with Mr. B.V. Balram Das, learned counsel for the Union of India.

This Court on 8^th December, 2017, at the stage of admission, had passed the following order:-

“In this petition, preferred under Article 32 of Signature Not Verified the Constitution of India, the petitioner has Digitally signed by challenged the constitutional validity of CHETAN KUMAR Date: 2018.01.05

17:53:20 IST Section 497 of the Indian Penal Code and and Reason:

Section 198(2) of the Criminal Procedure Code.

The said provisions read as under:

“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.”

198.Prosecution for offences against marriage (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 com- mitted may, with the leave of the Court, make a complaint on his behalf.”

Learned counsel submits that the said provisions have been treated to be constitutionally valid in three Judgments, namely, Yusuf Abdul Aziz vs. State of Bombay 1954 SCR 930 = AIR 1954 SC 321; Sowmithri Vishnu vs. Union of India and Another, (1985) Suppl.SCC 137 and V. Revathi vs. Union of India and Others (1988) 2 SCC 72. He has also drawn our attention to the decision in W. Kalyani vs. State through Inspector of Police and Another, (2012) 1 SCC 358 wherein a two-Judge Bench of this Court, after referring to the provision, observed thus:

“10. The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.”

On a perusal of the judgment in Yusuf Abdul Aziz's case, it seems that the provision was upheld on the basis of Article 15(3) of the Constitution.

In Sowmithri Vishnu's case (supra), the Court while relying on the principles laid down in Yusuf Abdul Aziz's case opined that the provision is intra vires. For the said purpose, the Court has expressed the view thus:

“Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried woman. It only makes a specific kind of extra-marital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps,