Gujarat High Court Upholds Man's Discharge In Adultery Case Citing SC Judgment Striking Down S.497 IPC As Unconstitutional
The Gujarat High Court has upheld an order discharging a man accused of committing adultery with another's wife in view of Supreme Court's 2018 judgment where Section 497 IPC was struck down as unconstitutional.
Prior to being struck down as unconstitutional in Joseph Shine v Union of India (2018), Section 497 stated that whoever has sexual intercourse with a woman who is wife of another man, without the consent or connivance of that man and such sexual intercourse does not amount to rape, is guilty of the offence of adultery. Punishment for the offence was imprisonment which may extend to 5 years, or with fine, or with both. However the provision stated that the wife shall not be punished as an abettor.
Justice Hasmukh D Suthar in his order said that the constitutional validity of Section 497 IPC has been struck down by the Supreme Court as being unconstitutional and violative of Articles 14, 15 and 21 of the Constitution of India.
The high court said that in the present case before it, except for the allegation of adultery no other consequence or independent offence—such as abetment of suicide or any other criminal offence—has been alleged.
"Therefore, merely on the basis of an alleged adulterous act, the person cannot be prosecuted further. In this regard, reference may be made to Joseph Shine v. Union of India, (2019) 3 SCC 39. In view of the above, both the courts below have not committed any error and, in the absence of any perversity, this Court does not find any reason to interfere with the findings recorded by the courts below. Once the very provision under which the accused were sought to be prosecuted has been declared unconstitutional, the question of continuing the criminal prosecution on the basis of such allegation does not arise. In the present case, both the courts below have considered the legal position and have rightly held that the accused cannot be prosecuted for an offence under a provision which has been declared unconstitutional by the Hon'ble Supreme Court".
The court said that while exercising revisional jurisdiction, it cannot re-appreciate or re-evaluate the evidence on record unless there is a clear jurisdictional error, perversity, or illegality in the findings recorded by the courts below.
Finding no perversity or jurisdictional error pointed out by the petitioner, the court said that the petitioner's contention that Supreme Court judgment in Joseph Shine has only prospective application, cannot be accepted in the facts of the present case.
The court was man's plea challenging orders of the sessions court and magistrate court which had discharged a man from the offence of committing adultery with the former's wife.
The petitioner's counsel submitted that both the courts below have committed an error in discharging the accused. It was submitted that the petitioner was married to respondent No.2-wife according to Hindu rites and rituals on 13.12.1994 and out of the wedlock, a daughter was born in 1999.
It was submitted that in1999, his wife left the matrimonial home and went to reside with her parents and thereafter did not return to the matrimonial home despite several efforts made by the husband.
It was further submitted that due to matrimonial discord between the parties, in February 2010, the petitioner-complainant allegedly saw his wife in the company of another man–respondent No.3 herein, which came as a shock to the petitioner. The petitioner approached respondent No.2 and requested her to return to the matrimonial home along with their daughter.
According to the petitioner, respondent Nos.2 and 3 were not legally married; however, respondent No.3 allegedly showed certain photographs indicating that he and petitioner's wife were married and that she was residing with respondent no. 3.
In view of the aforesaid circumstances, the petitioner filed a private complaint alleging the offence of adultery under Section 497 IPC against respondent No.3.
It was also alleged that the petitioner was abused and threatened, and therefore offences under Sections 495, 496, 497, 294B, 504, 506 read with Section 114 of the IPC were invoked.
The said complaint was initially registered as Inquiry Case in 2014 which subsequently culminated into a Criminal Case in 2015. After the inquiry, process came to be issued for the offences punishable under Sections 497 and 114 of the IPC.
Thereafter, the accused preferred an application under Section 245 CrPC seeking discharge. The trial court allowed the discharge application, in view of the fact that Section 497 IPC had been declared unconstitutional by the Supreme Court.
Being aggrieved by the trial court's order the petitioner moved an appeal before the sessions judge which was dismissed and the order of discharge was confirmed.
Against this the husband approached the high court arguing that though Section 497 IPC was declared unconstitutional by the Supreme Court on 27.09.2018, however the said declaration ought to be treated as prospective in operation and therefore the complaint filed prior to the said declaration should be allowed to proceed.
The petition was dismissed.
Case title: MANSUKHBHAI DHANJIBHAI MAKWANA v/s STATE OF GUJARAT & ORS.
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 425 of 2020