Before :- R. F. Nariman and Surya Kant, JJ.
Civil Appeal No. 3204 of 2019. D/d. 2.8.2019.
Col. Rajnish Bhandari, VSM - Appellants
Versus
Union of India & Ors. - Respondents
For the Appellants :- Ms. Meenakshi Arora, Sr. Adv., Ms. Neela Gokhale, Ms. Sahrdha Agarwal, Elam Pradi, R. P. Chhibber and Ms. Kamakshi S. Mehlwal, Advocates.
For the Respondents :- R. Balasubramanian, Sr. Adv., Bharat Singh, Arvind Kumar Sharma, Advocates.
IMPORTANT
Adultery decriminalisation in Jammu and Kashmir - Section 497 of Ranbir Penal Code head unconstitutional.
JUDGMENT
R. F. Nariman, J. - Having heard learned counsel for both the parties and having perused Section 497 of the Ranbir Penal Code, 1932, applicable to the State of Jammu and Kashmir, we are of the view that, given our judgment in Joseph Shine v. Union of India (2019) 3 SCC 39, the pari materia provision contained in Section 497 of the Ranbir Penal Code be also declared as violative of Part III of the Constitution of India. The sentence "In such case the wife shall be punishable as an abettor", which does not occur in Section 497 of the Indian Penal Code, 1860, cannot stand by itself in view of the fact that the expression used is `In such case'. The entire Section is, therefore, declared to be unconstitutional. The fact that this statement of law in the Ranbir Penal Code is the exact opposite of the statement of law, so far as the wife is concerned, of that contained in the Indian Penal Code, 1860, is of no consequence.
2. We are, therefore, of the view that nothing survives against the appellant on charges relatable to Section 497 Penal Code . So far as section 63 of the Army Act, 1950, is concerned, the appellant has already been acquitted, subject to confirmation. The Armed Forces Tribunal judgment dated 08.01.2019 is, therefore, set aside. The appeal stands allowed.
3. However, it is made clear that the confirmation proceedings, so far as the offence under section 63 of the Army Act, 1950, is concerned, may go on and reach its logical conclusion.
.