IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.MC.No. 3490 of 2007 ------------------------- CC.98/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONER: 5TH ACCUSED: --------------------------- GAYATHRI DEVI, RESIDING AT SIVASAKTHI, PEYAD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN SRI.M.R.SASITH RESPONDENTS: STATE & PETITIONER: ---------------------------------- 1. S. GIRISH KUMAR, RATHI BHAVAN, PUTHENVILA, CHERUVAIKKAL, SREEKARYAM P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 BY PUBLIC PROSECUTOR MR.C.M. KAMMAPPU FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO. 6313/2007 IN CRL.M.C.NO. 3490/20207 DISMISSED. ¾/2009 SD/-M.C.HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO. 3490 of 2007 ======================= Dated this the 3rd day of April 2009 ORDER The petitioner herein is the 5th accused in C.C.No.98/2007 pending on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram. The prayer in this petition filed under Section 482 of Cr.P.C. is to quash Annexure-A complaint filed by the first respondent herein and to set aside all further proceedings in C.C.No.98/2007 pending before that court. 2. Heard the learned counsel appearing for the petitioner and the first respondent. The prayer in this petition is opposed by the learned counsel for the first respondent. 3. The first respondent herein filed a private complaint before the Court of Judicial First Class Magistrate-II, Thiruvananthapuram alleging offence under Section 497 of I.P.C. against five accused altogether which was taken cognizance by the learned Magistrate and is pending before that court as CRMC.3490/2007 -2- C.C.No.98/2007. The petitioner herein is the wife of the first respondent/de facto complainant. It is alleged in this petition that in an offence under Section 497-adultery, the wife shall not be punishable as an abettor. In the decision reported in Revathi v. Union of India,1988(1)K.L.T.771 it is held as follows: “S.497, Penal Code, and S.198(1)read with S.198(2), Criminal P.C. go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the 'outsider' who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring 'man' alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the CRMC.3490/2007 -3- husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in 'favour' of the woman rather than 'against' her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as S.198(1)read with S.198(2)does not permit her to do so. In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practiced in circumscribing the scope of S.198(2)and fashioning it CRMC.3490/2007 -4- so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer”. Considering the dictum laid down in the abovesaid decision, the petitioner herein, who is admittedly the wife of the complainant/first respondent and who was arrayed as 5th accused in the above case, cannot be proceeded with for an offence under Section 497 of I.P.C. Considering the facts and circumstances of this case, the prayer in this petition is allowed to the extent of the petitioner herein, in respect of whom the further proceedings in C.C.No.98/2007 is quashed. The Crl.M.C.is allowed accordingly. The learned Magistrate is directed to dispose of the above case at the earliest as far as accused 1 to 4 are concerned. M.C. HARI RANI JUDGE ks.