Holding

Sections 198(1) and 198(2) of the Criminal Procedure Code are constitutionally valid and do not amount to hostile discrimination against women.

Summary

The petitioner, a wife, filed a writ under Article 32 challenging the constitutional validity of Sections 198(1) and 198(2) of the Criminal Procedure Code, arguing that the provision allowing only the husband of an adulteress to file a complaint under Section 497 of the IPC discriminates against women under Article 14. The Court examined the definition of adultery in Section 497, which criminalises only a man’s act, and noted that neither spouse is permitted to prosecute the other for adultery. It held that the legislative scheme, which punishes the ‘outsider’ who commits adultery and excludes the spouse from prosecution, treats both husband and wife alike and therefore does not constitute hostile discrimination. The Court further observed that the restriction in Section 198(2) merely reflects the substantive definition of the offence and does not deny any right to the wife, as she is not an offender under the law. Consequently, the petition was dismissed as the provision was found to be constitutionally valid.

Issues considered

Whether Sections 198(1) and 198(2) of the Criminal Procedure Code, which restrict the right to file a complaint for adultery to the husband of the adulteress, violate Article 14 of the Constitution by discriminating against women.

Legislation cited

Code of Criminal Procedure, 1973s. 198(1), s. 198(2)
Indian Penal Code, 1860s. 497

Subjects

Constitutional lawEquality clauseArticle 14Criminal Procedure CodeSection 198Indian Penal CodeSection 497AdulteryGender discriminationSupreme Court of India

Judgment

y V. REVATHI
A
v.
UNION OF INDIA & ORS.

FEBRUARY 25, 1988

IM.P. THAKKAR AND MUAARI MOHQN DUTI, JJ.] B
f-. Constitution of India, I950: Art. 14---Constitutional validity of
ss. 198( 1) and 198(2) Cr. P. C.-Adultery-Right to prosecute husband
not extended to the wife of the adulterer-Whether amounts to hostile
.,
• /
\ discrimination on the ground of sex. ·
c
~· Criminal Procedure Code, 1973. Sections 198(1) and 198(2)-

-
Adultery-Right to prosecute husband not extended to the wife of the
adulterer-Whether hostile discrimination violative of Art. 14 of the
Constitution of India.

The constitutional validity of Section 198 Cr.P.C. has been called D
into question by a wife by way of the present petition under Article 32 of
the Constitution of India.

The petitioner wife contended that whether or not the law permits
• a husband to prosecute his disloyal wife, the wife cannot be lawfully
--!
disabled from prosecuting her disloyal husband. The petitioner asserted E
that in so far as and to the extent Section 198(2) of the Code. of.Criminal
Procedure operates as a fetter on the wife in prosecutising her adulterer
husband, the relevant provisions is unconstitutional on the ground of
abnoxious discrimination, ,. --

·---"'. Dismissing the petiti011; this Court, F

HELD: 1. Admittedly under the law, the aggrieved husband,
whose wife has been disloyal to him, has no right under the law to
prosecute his wife, inasmuch as by the very definition of the offence,
only a man can commit adultery, not a woman. As between the husband
and the wife social good will be promoted by permitting them to· 'make G
up' or 'break up' the matrimonial tie rather than to drag each other to
~ the criminal court. They can either condone the offence .in a spirit of
'forgive and forget' and live together or separate by approaching a
matrimonial court and snapping the matrimonial tie by securing
divorce. They are not enabled to send each other to jail. Perhaps the
children are saved from the trauma of one of their parents being jailed H
73
74 SUPREME COURT REPORTS [1988] 3 S.C.R.

A at the instance of the other parent. [77E-G]

2. Section 497 does not confer any right on the wife to prosecute
the husband who has committed adultery with another woman. 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
B
legislative packet to deal with the offence committed by an outsider to
the matrimonial unit who invades the peace and privacy of the matri-
monial unit and poisons the relationship between the two partners con-
stituting 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
c one of the spouses subject to the rider that the erring 'man' alone can be
punished and not the erring woman. [77H; 78A-B]

Sowmithri Vishnu v. Union of India & Anr., [1985] Suppl. SCC
137, referred to.
D 3. Section 198 Cr.P.C. is not vulnerable to the charge of hostile
discrimination against a woman. 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
E 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 Section 198{1) read with
section 198(2) does not permit her to do ·so. The law has meted out
even-handed justice to both of them in the matter of prosecuting each
F other or securing the incarceration of each other. [78C-E]

CIVIL ORIGINAL JURISDICTION: Writ Petition (Cr!.)
No. 562of1986

(Under Article 32 of the Constitution of India.)
G
Ms. Geetha Ramaseshan and Ms. Seita Vaidilingam for the
Petitioner.

D.N. Dwivedi, Ashok K. Srivastava and S. Suri for the
Respondents.
H
V. REVATHI v. U.0.1. [THAKKAR, J.J 75

The Judgment of the Court was delivered by
A
THAKKAR, J. Not only the option to 'make up' or 'break up'
but also the right to 'haul up' the erring husband before a Criminal
Court, is claimed by the aggrieved wife irrespective of the fact that the
husband of an erring wife does not have a correspbnding right. Or else
the conscience of the 'EQUALITY' clause will not be appeased is the B
plea made by the anguished wife.

Accordingly, a constitutional gun has been pointed at the provi-
sion which in its effect permits only the husband of the adulteress to
prosecute the adulterer but does not permit the wife of the adulterer to
do so. True it is, neither of the spouses can prosecute each other. But
the aggrieved wife complains that to deny her the right to prosecute c
her offending husband for the offence of adultery punishable under
Section 497 of the Indian Pen~! Code is to violate. the Constitution by
discriminating against her on the ground of her sex.

The provision which disables the wife from prosecuting the D
husband for such an offence is embodied in Section 198(1) read with
Section 198(2) 1 of the Code of Criminal Procedure, 1973which carves
out an exception to the general rule that any one can set the criminal
law in motion. The constitutional validity of this provision which dis-
ables the wife from prosecuting the husband, has been called into
question by a wife by way of the present petition under Article 32 of E
the Constitution of India.

Be it realised that Section 497 of the Indian Penal Code is so
designed that a husband cannot prosecute the wife for defiling the
sanctity of the matrimonial tie by committing adultery. Thus the law
I. '' 198. Prosecution for offence against marriage- F
(1) No Court shall take cOngnizance of aii offence punishable under Chapter
XX of the Indian Penal c;;<>de (45 of 1860) except upon a complaint made by
some person aggrieved by the offence:
Provided that
(a) xx xx x
G
(b) xxxxx
(2) For the purposes of sub·section-(1), no person other than the husba~d of
the woman shall be deemed to-be agg-rieved by any offence punishable under
Section 497 or Section 498 of the said Code; 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." H
76 SUPREME COURT REPORTS I1988] 3 S.C.R.

A permits neither the husband of the offending wife to prosecute,his wife
nor does the law-permit the wife to prosecute the offending husband
for being disloyal to her. Thus both the husband and the wife are
disabled from striking each other with the weapon of criminal law. The
petitioner wife contends that whether or not the law permits a husband
to prosecute his disloyal wife, the wife cannot be lawfully disabled
B from prosecuting her disloyal husband. And that in so far as and' to the
extent Section 198(2) of the Code of Criminal Procedure operates as a
fetter on the wife in prosecuting her adulterer husband, the relevant
provisions is unconstitutional on the ground of obnoxious discrimina-
tion, she asserts.

c CourtThis very argument came to be debated before a Bench of this
in Sowmithri Vishnu v. Union of India & Anr., I1985] Suppl.
SCC 137 in the context of a challenge to the constitutionality of Sec,
tion 49?2 of the Indian Penal Code by an adulterer who had been
prosecuted for the offence of adultery under Section 497 of the Indian
Penal Code by the husband of the adultress. Three grounds were pres-
D sed into service in support of the challenge rooted in Article 14 of the
Constitution of India in Sowmithri Vishnu's case (supra). Ground No.
2 was in the following terms:

"Section 497 does not confer any right on the wife to prose-
cute the husband who has committed adultery with another
E woman.''

This ground of challenge has been dealt with by this Court in l'ar3: 8 of
the said judgment wherein Chandrachud, CJ. spoke thus on behalf of
the 'Com::t:

F "In so far as the second of the three grounds is concerned,
Section 497 does not envisage the prosecution of the wife
by the husband for 'adultery'. The offence of adultery as
defined in that section 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
G grievance can then be made that the section does not allow

2. "497. Whoever has sexual intercosurse with a person who is and whom he knows or
has reason to_ believe to b.e the wife of another man;without the consent or conni-
vance 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 tenn which may extend to five years, or with fine, or with both. In
H sUch case the wife shall not be punishable as an abettor."
V. REVATHI v. U.O.I. [THAKKAR, J.I 77
)
the wife to prosecute the husband for adultery. The con-
A
templation of the law, evidently is that the wife, who is
involved in an 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 matri-
monial home, and act which is committed by a man, as it B
,l generally is. Therefore, those men who defile that sanctity
are brought with the net of the law. In a sense, we revert to
the same plint. Who can prosecute who for which offence
depends firstly, on the definition of the offence and, sec-
ondly, upon the restrictions placed by the law of procedure
on the right to prosecute."
c
Thus this very argument has already been rep~lsed by this Court,
albeit, in the context of the challenge to Section 497 of the Indian
Penal Code. The same bullet has now been fired in order to assail
Section 198(2) of the Criminal Procedure Code in so far as it confines
the right to prosecute· the adulterer to the aggrieved husband of the D
adulteress. The argument in support of the challenge is that whether or
not the husband has the right to prosecute the disloyal wife, the wife
must have the right to prosecute the disloyal husband. Admittedly
under the law, the aggrieved husband wh'bse wife has been disloyal to
.., ;
him has no right under the law to prosecute his wife, inasmuch as by
the very definition of the offence, only a man can commit it, not a E
woman. The philosophy underlying the scheme of these provisions
appears to be that as between the husband and the wife social good will
be promoted by permitting them to 'make up' or 'break up'. the
I
matrimonial tie rather than to drag each other to the criminal court.
They can either condone the offence in a spirit of 'forgive and forget'
~ and live together or separate by approaching a matrimonial court and F
snapping the matrimonial tie by securing divorce. They are not en-
abled to send each other to jail. Perhaps it is as well that the children
(if any) are saved from the trauma of one of their parents being jailed
at the instance of the other parent. Whether one does or does not
subscribe to the wisdom or philosophy of these provisions is of little
consequence. For, the Court is not the arbiter of the wisdom or the G
philosophy of the law. It is the arbiter merely of the constitutionality of
.,-\ the law.

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 H
78 SUPREME COURT REPORTS (1988) 3 S.C.R.
{
A 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
B 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 pf
criminal law. That is why neither the husband can prosecute the wife
an<;! 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
C 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 discrimina-
tion against the woman in so far as she is not permitted to prosecute
D 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
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 incarc-
eration of each other. Thus no discrimination has been practised in
circumscribing the scope of Section 198(2) and fashioning it so that the
E right to prosecute the adulterer is restricted to the husband of the
adulteress but has not been extended to the wife of the adulterer.

The provision in question is therefore not vulnerable to the
charge of hostile discrimination against a woman and cannot be suc-
cessfully assailed from that platform. The petition must therefore fail
F and be dismissed.

G.N. Petition dismissed.