“It is only on this paternalistic notion of a woman being likened to a chattel... that no offence is committed if the husband consents or connives.”-Delhi HC
Recently, the Delhi High Court plunged into a critical examination of a colonial-era provision that once criminalized adultery. In a case that drew upon the fallout of a personal relationship and the constitutional death knell sounded by Joseph Shine v. Union of India (2018), the Court examined whether a man could still be summoned under a law already declared void. The judgment, layered with constitutional insights and sharp commentary on gendered injustice, offers far more than just a resolution to one man's petition.
Brief Facts of the Case:
The Petitioner, Ashok Kumar Singh, approached the Delhi High Court under Section 482 CrPC seeking quashing of the order dated 28.04.2018 passed by the Additional Sessions Judge summoning him under Section 497 of the Indian Penal Code (IPC) (Adultery). The complaint was filed by Respondent No.2, Inderjeet Singh, who alleged that his wife, Seema Satsangi, was involved in an adulterous relationship with the Petitioner. Inderjeet Singh claimed his wife traveled with the Petitioner to Lucknow in January 2010 and stayed with him overnight at Hotel Piccadilly. He alleged that this amounted to adultery and initiated criminal proceedings. The Magistrate had initially discharged the Petitioner in 2016, but this order was reversed by the ASJ in 2018, prompting the present petition.
Contentions of the Petitioner:
The Petitioner contended that the summoning order by the ASJ was erroneous and based solely on presumptions without any direct evidence of sexual intercourse. He argued that mere cohabitation in the same hotel room cannot lead to the presumption of adultery. It was also submitted that the revisional jurisdiction was wrongly invoked by the complainant as the discharge by the Magistrate amounted to acquittal, and only a leave to appeal could have been filed. Significantly, the Petitioner relied on the Supreme Court judgment in Joseph Shine v. Union of India, wherein Section 497 IPC was declared unconstitutional for being violative of Articles 14, 15, and 21 of the Constitution. Hence, continuation of proceedings under the now-struck-down provision was legally untenable.
Contentions of the Respondent:
The Respondent (Complainant) defended the validity of the ASJ's summoning order, asserting that there was clear evidence of an adulterous relationship. He pointed out that his wife continued her relationship with the Petitioner despite a legal notice, and they even began cohabiting in Delhi. It was also argued that the Petitioner had admitted traveling to Lucknow with the Complainant’s wife. The Respondent claimed that the complaint was justified and well-supported by facts. He also referred to various legal proceedings initiated by his wife against him allegedly at the behest of the Petitioner, including a DV Act case and criminal complaints under Sections 406/498A IPC.
Observation of the Court:
In its judgment, the Delhi High Court, presided over by Justice Neena Bansal Krishna, delivered a comprehensive analysis of Section 497 of the IPC. The Court's reasoning was anchored in both constitutional principles and settled precedent, particularly the landmark Supreme Court ruling in Joseph Shine v. Union of India (2018), which struck down Section 497 IPC as unconstitutional.
The Court observed that Section 497 IPC, which penalized a man for engaging in sexual intercourse with a married woman without her husband’s consent, was inherently discriminatory and violated Articles 14, 15, and 21 of the Constitution. Justice Krishna quoted the statute to emphasize its patriarchal framework:
"It is only on this paternalistic notion of a woman being likened to a chattel... that no offence is committed if the husband consents or connives."
Noting the exclusion of the woman from criminal liability and from the definition of the aggrieved party, the Court described the provision as an archaic reflection of gender inequality. It observed:
“Ironically, it is not the husband or the alleged adulterous wife, who is the accused... rather it is the third person who allegedly has sexual intercourse with the wife of another man who becomes an accused person.”
Justice Krishna echoed the observations made in Joseph Shine, particularly those by then Chief Justice Dipak Misra and Justice Rohinton F. Nariman, highlighting the arbitrary nature of the provision. The judgment quoted Chief Justice Misra's declaration that adultery laws intrude into “a matter of privacy at its pinnacle,” and that:
“Thinking of adultery from the point of criminality would be a retrograde step.”
The Court further quoted Justice Nariman’s critique of the provision’s underlying object:
“The sanctity of the marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. Also, if the husband consents... no offence is committed.”
The Court underscored the retrospective applicability of the declaration of unconstitutionality. Citing Maj. Genl. A.S. Gauraya & Anr. v. S.N. Thakur (1986), the Court held that declarations of law by the Supreme Court have retrospective effect and apply to all pending proceedings.
Decision of the Court:
The impugned order dated 28.04.2018 passed by the learned ASJ summoning the Petitioner under Section 497 IPC was set aside, the complaint of Respondent No. 2 was quashed, and the Petitioner was discharged. Consequently, the petition was allowed and the pending applications were disposed of accordingly.
Case Title: X v. The State & Inderjeet Singh
Case no.: CRL.M.C. 3652/2018 & CRL.M.A.28469/2018
Coram: Hon'ble Ms. Justice Neena Bansal Krishna
Advocate for the Petitioner: Adv. Mr. J.S.Rawat
Advocate for the Respondent: Adv. Ms. Meenakshi Dahiya, Ld. APP for the State, Adv. Mr. Satish Kumar (for Respondent-2).
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