Delhi High Court: In a petition filed under Section 4821 of Criminal Procedure Code, 1973 for quashing the order dated 28-04-2018, whereby the petitioner was summoned under Section 497 of the Penal Code, 1860 (‘IPC’) filed by complainant (‘husband’), Neena Bansal Krishna, J., gravamen of Section 497 of IPC was that they must have indulged in the act of adultery i.e. they must have had sexual intercourse for which there was no oral or documentary evidence, but was based on a presumption which could not be considered prima facie for summoning of the petitioner. The essential ingredients of Section 497 IPC, were therefore, not made out. Thus, the Court set aside the summoning order of the petitioner and quashed the husband’s complaint case against the petitioner. Accordingly, the Court allowed the petition and discharged the petitioner.
Background
In the present case, the husband and his wife got married on 28-02-1998, as per Hindu rites and customs. From their wedlock two sons were born. The husband alleged that in the month of August 2009 his wife started going to the park near their house on the pretext of walk after dinner. He found in December 2009, the petitioner, had been making regular calls to his wife varying from 2 minutes to one hour and even at odd hours between 9:00 pm to 11:30 pm. Thus, he realized that his wife was having an extra marital affair with him.
According to him, his wife along with the petitioner went to Lucknow on 21-01-2010 in a flight, where they stayed together in the night of 21-1-2010, as husband and wife and had sexual intercourse without the consent of the complainant. On their return on 22-01-2010, he confronted his wife who told him to leave if he had any problem with their relationship.
The husband served a legal notice dated 05-04-2010 on his wife to restrain her relationship with the petitioner. Thereafter, he filed the criminal complaint under Section 497 of IPC.
Analysis, Law, and Decision
The Court noted that the Metropolitan Magistrate vide detailed order dated 9-9-2016, discharged the petitioner. However, this order of discharge was set aside by the Additional Sessions Judge, vide impugned order dated 28-4-2018, and he was summoned for offence under Section 497 of IPC.
The Court stated that Section 497 of IPC was restricted one as the consequence of which a man who was not a husband, in given circumstances, becomes criminally liable for having committed adultery, while in other situations being a husband, he could not be branded as a person who had committed adultery so as to invite culpability of Section 497 IPC. The Court stated that the first aspect which emerged was that ironically, it was not the husband or the alleged adulterous wife, who was the accused for the offence under Section 497 of IPC; rather it was the third person who allegedly had sexual intercourse with the wife of another man who became an accused person.
The Court stated that the woman was considered as the property of the husband and its devastating consequences were well documented in Mahabharat wherein Draupadi was put on stake in a game of gamble by none other than her own husband Yudhishtra where other four brothers were the silent spectators and Draupadi had no voice to protest for her dignity. As it happened, she was lost in the game of gamble and what followed was the great war of Mahabharat leading to mass loss of lives and wiping out of many of the family members. The Court stated that despite having such example to demonstrate the consequence of absurdity of treating of a woman as a chattel, the misogynistic mindset of our society understood this only when the Section 497 of IPC was declared as unconstitutional in Joseph Shine v. Union of India, (2018) 2 SCC 189.
The Court stated that the next aspect which came for consideration was whether the declaration of Section 497 of IPC as unconstitutional was retrospective and would be applicable to the present case which got initiated with a complaint filed by the husband on 24-04-2010. The Court referred to various case laws and stated that the complaint case filed by the husband on the allegations of Section 497 of IPC against the petitioner, was therefore, liable to be quashed.
The Court further stated that even on facts the Metropolitan Magistrate, had rightly noted that the case of the petitioner was that since his wife along with the petitioner stayed overnight in the same hotel room in Lucknow, there could be no presumption of they had indulged in a sexual intercourse. The gravamen of Section 497 of IPC was that they must have indulged in the act of adultery i.e. they must have had sexual intercourse for which there was no oral or documentary evidence but was based on a presumption which could not be considered prima facie for summoning of the petitioner. The essential ingredients of Section 497 IPC, were therefore, not made out.
Thus, the Court set aside the summoning order of the petitioner and quashed the husband’s complaint case against the petitioner. Accordingly, the Court allowed the present petition and discharged the petitioner.
[X v. State, CRL.M.C. 3652 of 2018, decided on 17-4-2025]
Advocates who appeared in this case :
For the Petitioner: J.S. Rawat, Advocate.
For the Respondents: Meenakshi Dahiya, Ld. APP for the State; Satish Kumar, Advocate.
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