1 cri-wp-156-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 156 OF 2011 Deepak Prem Mirwani .. Petitioner Vs. 1. The State of Maharashtra and ors. .. Respondents Mr. Nitin Pradhan i/by Ms. S.D. Khot and Ms. Ameeta Kuttikrishnan for petitioner. Mr. Y. S. Shinde, APP for State. Mr. D.J. Khambata, ASG with Mr. Arif Doctor, Mr. S.K. Shinde for respondent no.2 – UOI. Mr. Vaibhav Krishna with Ms. Laxmi Mordekar, Mr. Nilesh Masurkar, Ms. Usha Jain i/by M/s. Juris Consillis for respondent no.3. Mr. Gopal Hegde for respondent no.4. Mr. Ishwar Prasad G. Khandelwal – respondent no.5-in-person – Intervener. Mr. Mihir Desai a/w Mr. Alok Gupta for proposed Intervener. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. July 11, 2011. 2 cri-wp-156-11 ORAL ORDER (PER B. H. MARLAPALLE,J.) 1. Heard the learned counsel for the parties and the intervener- respondent no.5 appears as party-in-person. 2. This petition, filed under Article 226 of the Constitution, prays for the following substantial reliefs:- (b) A writ of mandamus or any other appropriate writ, order or direction, be issued declaring Section 497 – Indian Penal Code providing punishment for offence of Adultery as ultra virus the Constitution and violative of Articles 14 and 21 of the Constitution. (c) A writ of certiorari or any other appropriate writ, order or direction, be issued quashing the proceedings in Criminal Case No. 51/SW/2009 pending in the file of learned Additional Chief Metropolitan Magistrate, 5th Court, Dadar, Mumbai. 3. We have heard the petition mainly on the relief as set out in prayer clause (b) i.e. the constitutional validity of Section 497 of the Indian Penal Code (for short IPC). 3 cri-wp-156-11 4. Respondent No.4 is the wife of respondent no.3. She approached the Family Court at Mumbai in M.J. Petition No. A-8/2008 filed under Section 10 of the Hindu Marriage Act, 1955 and prayed for a decree of judicial separation and also the custody of the minor son. The said petition was allowed partly and the minor son is in the custody of respondent no.3. Respondent No.3 filed C.C. No. 51/SW/2009 in the court of the learned Additional Chief Metropolitan Magistrate, Bhoiwada, Dadar against the present petitioner and for the offence punishable under Section 497 of IPC. The complainant alleged that the accused – petitioner was involved in an adulterous relationship with his wife i.e. Respondent No.4 and he was not a consenting or conniving party to the said relationship and, therefore, the accused be punished under Section 497 of IPC. The learned Metropolitan Magistrate was pleased to issue process on 15/10/2009. The said order of issuance of process came to be challenged in Criminal Writ Petition No. 2842 of 2010 and it has been dismissed as withdrawn by the Single Bench on 20/12/2010. Respondent No.3 has also filed M.J. Petition No. A-2750 of 2008 for seeking a divorce under Section 13(1)(ia)(i) of the Hindu Marriage Act, 1955 and the said petition is still pending. In the said petition filed by respondent no.3, the present petitioner is a co-respondent 4 cri-wp-156-11 along with respondent no.4. It is at this stage that the accused-petitioner has moved this petition to challenge the constitutional validity of Section 497 of IPC. 5. It has been submitted that Section 497 was incorporated in the IPC way back in 1872 and in view of the changed social environment and more particularly the right to privacy and the right to life flowing from the constitutional guarantee of fundamental rights, the said provision has become out-dated. With the enactment of the Protection of Women from Domestic Violence Act, 2005 (the Act of 2005 for short), the Parliament has recognized the concept of domestic relationship which in common language is “live-in-relationship”. With the changed parameters of morality and as a consequence of the Act of 2005 extra marital relationship between a married man and a married women cannot be treated as an offence and when the Hindu Marriage Act, 1955 provides for a decree of divorce on the ground of adultery, the penal provision incorporated under Section 497 of IPC is required to be declared as ultra vires and the right to have sex between two adult persons i.e. a man and a woman flows from the guarantee of fundamental rights and the penal provision under Section 497 of IPC takes away the right of personal liberty and, therefore, it is required 5 cri-wp-156-11 to be declared as unconstitutional. The petitioner has also relied upon the report submitted by the Law Commission of India about the right to maintenance for the second wife, though she may not be a legally wedded wife under Section 125 of Cr.P.C. or under the Hindu Marriage Act, 1955. The petitioner also relied upon the Malimath Committee recommendations submitted to the Central Government for criminal law reforms pointing out the need to amend Section 125 of Cr.P.C. 42nd Report submitted by the Law Commission of India in the year 1971 has also been relied upon and it is contended that the right to life emanating from Article 21 and further the domestic relationship has been recognized as a legitimate way of staying together and, therefore, in the changed social order, Section 497 is required to be declared as ultra vires the Constitution as it violates the guarantee under Articles 14 and 21 of the Constitution. It is also contended that there is no disqualification attached for maintaining domestic relationship under the Act of 2005 and when gay marriages are recognized even in Indian society, a time has come that the extra marital relationship between two adults ( a married man and a woman who is the wife of some one else) cannot be called an offence because having a sexual attractions between two married persons and 6 cri-wp-156-11 outside their marriage cannot be said either morally or by law of nature as a wrong. The petitioner claims that if a married man goes to a prostitute or has a gay relationship, it does not offend the law or morality and this indulgence of the man outside his marriage is not a crime and if that be so, if such a married man has a sexual relationship with a married woman, he cannot be held to be guilty of a crime and, therefore, the scheme of Section 497 does not stand to the tests of the present times and consequently it is required to be deleted from the IPC. 6. Mr. Khambata, the learned Additional Solicitor General, appearing for the Union of India, submitted that the challenge raised by the petitioner to the validity of Section 497 of IPC is no more res integra in view of the following decisions of the Supreme Court:- (a) Yusuf Abdul Aziz vs. State of Bombay and anr. [AIR 1954 SC 321] (b) Sowmithri Vishnu vs. Union of India and anr. [1985 (Supp) SCC 137] (c) V. Revathi vs. Union of India and ors. [(1988) 2 SCC 72] 7 cri-wp-156-11 Mr. Khambata, therefore, urged to dismiss the petition and it would not be necessary for the Union of India to file an affidavit-in-reply. It was further contended that the petitioner is trying to delay the trial pending before the learned Metropolitan Magistrate by filing this frivolous petition. 7. The respondent no.3 has filed affidavit-in-reply and opposed the petition. At the same time, respondent no.4 filed return and supported the petition. Mr. Mihir Desai, the learned counsel, addressed us on behalf of an organization called “Forum Against Oppression of Women” and submitted that a sexual relationship between two married persons i.e. a man and a woman cannot be treated as a crime, though it may be a matrimonial wrong or a social wrong for which the parties may face consequences in civil law. He pointed out that in number of countries adultery is not an offence and in some other countries, though it is an offence, the degree of punishment for the man and woman is different. Inviting our attention to the scheme of Section 497, it was submitted by Mr. Desai that the language of the said section, if correctly interpreted, treats the married lady as a commodity and a property of her husband and, therefore, it is required to be removed from the statute. He also submitted that there is absence of gender equality in the scheme of Section 497 and, 8 cri-wp-156-11 therefore, it is high time that the Parliament re-vists the said section. Respondent No.5, the intervener, party-in-person, has submitted his written arguments and opposed the petition pointing out that the constitutional validity of Section 497 of IPC is no more res integra and the Supreme Court has upheld the validity of said section on number of occasions during the last about 50 years, as has been pointed out by the learned Addl. Solicitor General. 8. Section 497 of IPC reads as under and it finds place in Chapter XX:- “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.” As per Section 497 of IPC, to establish the offence of adultery it must be proved that, 9 cri-wp-156-11 (a) the accused (man) had a sexual intercourse with the woman, (b) the said woman was married to someone else, (c) the accused knew or had reasons to believe that she was someone else’s wife, (d) the sexual intercourse was without the consent or connivance of the husband of the woman and (e) that the sexual intercourse so had, did not amount to rape. Section 198 of Cr.P.C. provides for the procedure for the prosecution of the offences against marriage and as per subsection (1) therein, no court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence and as per subsection (2) of the said section, for the purpose of subsection (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or 498 of IPC, 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 committed may, with the leave of the Court, make a complaint on his behalf. 10 cri-wp-156-11 9. In the case of The State vs. Yusuf Abdul Aziz [AIR 1951 Bom. 470], a Division Bench of this Court considered the issue as to whether Section 497 of IPC contravenes any fundamental rights and whether it is void. The Division Bench held that Section 497 did not contravene any of the fundamental rights laid down in the Constitution and, therefore, it was not bad or void under Article 13 of the Constitution. This decision came to be challenged before the Supreme Court i.e. Yusuf Abdul Aziz vs. State of Bombay and anr. (Supra). It was submitted before the Supreme Court that Section 497 of IPC contravenes Articles 14 and 15 of the Constitution and in that case also the appellant – Yusuf Abdul Aziz was being prosecuted for the offence punishable under the said section and as soon as the complaint was filed, he had applied to the Bombay High Court to determine the constitutional validity of the said section. In para 6 of its judgment, the Constitution Bench stated, “6. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and 11 cri-wp-156-11 children. The two Articles read together validate the impugned clause in S. 497, Penal Code.” In its subsequent judgment in the case of Sowmithri Vishnu vs. Union of India and anr. (Supra), the Supreme Court decided a writ petition filed under Article 32 of the Constitution challenging the validity of Section 497 of IPC. In that case also a petition for divorce was pending against the petitioner-wife and the husband had filed a complaint against a man, who was in an adulterous relationship with the petitioner. It was submitted before the Supreme Court that Section 497 of IPC is violative of Article 14 of the Constitution on three grounds, namely, (a) Section 497 confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; (b) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and (c) Section 497 does not take in cases where the husband has sexual relations with an unmarried woman, with the result that husbands have, as it were, a free licence under the law to have extra-marital relationship with unmarried women. The Supreme Court held, 12 cri-wp-156-11 “.......We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to take note of the `transformation’ which the society has undergone. The Law Commission of India in its Forty-second Report, 1971, recommended the retention of Section 497 in its present form with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery........... The report of the Law Commission shows that there can be two opinions on the desirability of retaining a provision like the one contained in Section 497 on the statute book. But, we cannot strike down that section on the ground that it is desirable to delete it.” 10. The Supreme Court held that the offence of adultery as defined in Section 497 can only be committed by a man, not by a woman. Indeed, the section provides expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an 13 cri-wp-156-11 illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point: Who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute. Dealing with the third ground of challenge, the Supreme Court held that the law does not confer freedom upon husbands to be licentious by gallivanting with unmarried women. 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, invites a civil action by the wife for separation. The Legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another. The Supreme Court went on to observe, “...... The alleged transformation in feminine attitudes, for 14 cri-wp-156-11 good or for bad, may justly engage the attention of the law- makers when the reform of penal law is undertaken. They may enlarge the definition of `adultery’ to keep pace with the moving times. But, until then, the law must remain as it is. The law, as it is, does not offend either Article 14 or Article 15 of the Constitution. Incidentally, the demand of the petitioner that sexual relationship of a husband with an unmarried woman should also be comprehended within the definition of `adultery’ is a crusade by a woman against a woman. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery? That is the grievance of the petitioner.” 11. The challenge that Section 497 violates Article 21 of the Constitution was on the ground that the wife is not heard when the paramour is tried for an offence punishable under Section 497 of IPC, though the real victim is the wife. The Supreme Court while repelling the argument, stated, “.... We have no doubt that if the wife makes an application in the trial court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the court. There is nothing, 15 cri-wp-156-11 either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the court. In fact, instances are not unknown in criminal law where, though the prosecution is in the charge of the Public Prosecutor, the private complainant is given permission to oversee the proceedings. One step more, and the wife could be allowed a hearing before an adverse finding is recorded that, as alleged by her husband, the accused had committed adultery with her. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in Section 497 cannot render that section unconstitutional as violating Article 21.” In para 12 of the judgment, the Supreme Court concluded, “12. Though it is true that the erring spouses have no remedy against each other within the confines of Section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery. `Adultery’ under the civil law has a wider connotation than under the Penal Code. If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute 16 cri-wp-156-11 book and adulterous relations will have a more free play than now. For then, it will be impossible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.” 12. For the third time, the scheme of Section 497 came to be challenged before the Supreme Court in the case of V. Revathi vs. Union of India and ors. (Supra). The challenge was on the ground that Section 497 in its effect permits only the husband of the adulteress to prosecute the adulterer, it does not permit the wife of the adulterer to do so and Section 198(2) of Cr.P.C. was constitutionally invalid. The Supreme Court in para 5, stated thus, “5. Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code 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 17 cri-wp-156-11 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 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 insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 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 practised in circumscribing the scope of Section 198(2) and fashioning it 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.” 18 cri-wp-156-11 13. Mr. Pradhan, the learned counsel appearing for the petitioner submitted that despite the above stated legal position, the challenge to the constitutional validity of Section 497 is required to be gone into because of the 42ndt Law Commission Report, the enactment of the Act of 2005 and decision of the Supreme Court in the case of Chanmuniya vs. Virendra Kumar Singh Kushwaha and anr. [2011 (1) SCC 141] making a reference to a Larger Bench on the following issues:- (i) Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C.? (ii) Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr. P.C. having regard to the provisions of Domestic Violence Act, 2005? (iii) Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.? 19 cri-wp-156-11 14. The Committee on reforms of criminal justice system (Report Volume – I) recommended to the Parliament to amend the scheme of Section 125 of Cr.P.C. so as to enable the second wife or the second lady, who lived like a wife to claim maintenance even though she is not a legally wedded wife. The 42nd Report of the Law Commission of India concluded in para 20.18 for revision of Section 497 of IPC. The recommendations reads as under:- “After much discussion and careful consideration, we are of the opinion that the exemption of the wife from punishment under section 497 should be removed, that the maximum punishment of five years’ imprisonment prescribed in the section is unreal and not called for in any circumstances and should be reduced to two years,