Smt. Sowmithri Vishnu vs Union of India & Anr 1985 AIR SCR
SC in this case dismissed the petition of sowmithri Vishnu and directed that no further proceedings will be taken up by the parties. This case is important because it deals with constitutional validity of Section 497 of IPC which defines the offence of adultery.
Facts of the case:
- In this case the petitioner is Sowmithri Vishnu she filled petition against her husband for granting divorce on ground of Desertion.
- Trial Court the dismissed the petition saying that the petitioner has herself deserted her husband.
- After that, the husband filed a petition for divorce against the petitioner on two grounds. Firstly, that she had deserted him and secondly that she was the one who was living in adultery with a person called Dharma Ebenezer.
- The petitioner (wife) said that the decree of divorce can be passed against her on the ground of desertion. And that the court should not adjudicate upon the question of adultery, since it was unnecessary to do so. But the husband said that he was entitled to obtain a decree of divorce against the petitioner. Not only on the ground of desertion but on the ground of adultery also and that.
- There was no reason why he should be denied an opportunity to show that the petitioner was living in adultery. This contention was accepted by the Trial Court.
- The wife then filed a revision petition against this trial court order in the High Court and the High Court accepted her plea & since the finding recorded in the earlier petition was binding on the parties the decree for divorce had to be passed in favor of the husband on ground of desertion and that. It was unnecessary to inquire into the question of adultery.
- So, pursuant of High Court views a decree of divorce was passed in the favor of husband.
- While the petition for divorce of a husband was pending against the wife. The husband filed a complaint against the Dharma Ebenezer under Section 497 of IPC on charging him with having committed adultery with his wife.
- Thereafter, the wife came before the Supreme Court under a writ petition under section 32 of constitution of India for quashing the complaint.
Relevant law applicable
Section 13(1) of Hindu Marriage Act defines the grounds of Divorce. One of the ground for divorce is Desertion. It means desertion of any party to marriage by any another party without any reasonable cause and without his or her consent.
Section 497 of IPC: This section deals with Adultery and it says that whoever has sexual intercourse with married women, without the consent of her husband, is guilty of offence of Adultery and defines this offence as Non-cognizable and bailable. This offence is compoundable by the husband of the woman with whom adultery is committed. Section 497 punishes only man, women cannot be punished even as an abettor or for being an adulterous, it does not give wife a right to file complaint against the adulterous husband. Supreme Court in one of the judgment said that in order to protect sanctity of marriage, married man is not allowed to prosecute their wife and women could not be allowed to prosecute their husband. Thus the offence of adultery is treated as crime committed against man by another man.
Whoever commits the offence of Adultery is punishable for imprisonment for a maximum term of Five years or with fine.
Section 198(2) Aggrieved Person: Section 198(2) of Crpc treats husband of the wife as aggrieved by an offence committed under section 497 and in absence of husband, any other person will be treated as aggrieved who had taken care of woman at the time when the offence was committed. Which means only husband of women with adultery is committed can file a complaint under this section and in absence of husband any other person who had taken care of the woman.
- Does wife have a right to be heard & her consent for the act matter?
- Whether Section 497 of Indian Penal Code is unconstitutional?
- They argued that Section 497 of IPC is unconstitutional because it makes irrational classification among man and woman and under section 497 of IPC wife doesn’t have a right to be heard & her consent for the act doesn’t matter. Therefore it is against principle of natural justice. And it affects her right to reputation.
- Petitioner in the writ petition gave 2 reasons for quashing the complaint. First was Section 497 gives husband right to prosecute the man but it doesn’t confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. Secondly section 497 doesn’t cover those cases where the husband has sexual intercourse with an unmarried woman.
After hearing all these arguments by petitioner the Supreme Court said that these arguments are emotional arguments & doesn’t have any legal bases. Then petitioner argued that the definition should be amended so as to include both man and woman as punishable for the offence of adultery.
Bench- Hon’ble Justice A.N. Sen, Justice R.S. Pathak, Justice D.Y. Chandrachud
- The Supreme Court said that even if the provision doesn’t provide for hearing married woman. Court can still hear her & there is nothing, either in substantive or adjective criminal law.
- So therefore, the fact that a provision for hearing the wife is not contained in section 497 cannot make that section as unconstitutional as violating the Article 21.
- Finally the Supreme Court held that since the petitioner’s husband has already obtained divorce against her on the ground of desertion no useful purpose will be served by inquiring into the allegations whether she had adulterous relationship with Dharma Ebenezer or not.
- Then the Court quashed the complaint and directed that no further proceedings will be taken up by the parties into this matter.
Author: Pooja Rathore,
Delhi Metropolitian Education, IP university, 3 year BBA LLB