HC drops proceedings against adultery accused

New Delhi, June 5 (UNI) Can a case against a person accused of adultery still be pursued when the husband has withdrawn the divorce petition filed on the same grounds against his wife? The Delhi High Court yesterday dropped proceedings against a man accused of committing adultery with another man's wife and observed, ''since the husband has withdrawn his divorce petition against both his wife and the petitioner, no useful purpose would be served by continuing proceedings against him.'' Justice A K Sikri, quashing the summoning orders against one Sandwip Roy, observed that sufficient materials were not produced against the accused to continue the case against him.

The court observed that in the present case, adultery is a legitimate ground for divorce as well. The husband is disqualified from seeking divorce in case he condones the act of adultery committed by his wife.

Section 497 of the Indian Penal Code (IPC) does not talk of condonation but only of connivance. Thus, where the husband connived with his wife who committed sexual intercourse, he cannot press charges.

The complainant, Sudarshan Chakraborty, filed a divorce petition against his wife on October 22, 1998, accusing her of adultery.

Four months after filing the divorce petition, he filed a complaint against Sudarshan under sections 497 and 506 of the IPC for having an adulterous relationship with his wife. Later, the complainant withdrew the divorce petition making a statement that he had made a compromise with his wife and both have started living together. Therefore, he did not want to pursue the said petition.

However, Sudarshan pursued the case against Sandwip Roy and the court issued summons against him.

Sandwip Roy approached the Delhi High court to quash the summoning orders and to drop the case against him since the couple was staying together. Sudarshan told the court that he withdrew the divorce petition in the interest of his children as he had patched up with his wife but in no way did he condone the acts of adultery committed by the accused.

Quoting the judgement of the Supreme Court, Justice Sikri observed that if the husband co-habited with his wife even after knowing that she had been guilty of co-habiting with another person, it will be sufficient to constitute condonation and once the act of adultery had been condoned, the husband could not seek divorce on this ground.

Justice Sikri observed that Chapter XX of the IPC deals with offences relating to marriage.

Section 497 of the IPC considers adultry as an offence. It reads, '' Whoever has sexual intercourse with a person who is and whom he knows or has reasons to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of offence of adultry and shall be punished with imprisonment of either description for a term which may extend to five years, or with a fine, or with both. In such cases, the wife shall not be punishable as an abettor.'' The complaint can be filed only by the husband of the woman with whom the accused person had sexual intercourse. The court observed, '' Interestingly, before the Indian Penal Code was enacted under the British rule, adultery was not a crime in India either for men or for women. This is stated in Macaulay's code which was the first draft of the Indian Penal Code framed in 1837. Macaulay's argument was that the social infrastructure that existed in those times, the secondary and economically dependent position of women was not conducive to punish adulterous men. So far as the women are concerned, his opinion was that considering the social 'purda' among Hindus, especially among aristocratic, high caste and affuluent families, the question of adultery against women did not arise.

Besides, Macaulay was convinced that since polygamy was an everyday affair at that time, the wife was socially conditioned to accept her husband's adulterous relationship. She neither felt humiliated nor was it a cultural shock.

The court observed that the law commission of India under the British rule declared adultery as a crime committed only by men. The law on adultery was drafted in 1860 making only men offenders who could be punished for adultery. The exclusion of women from this category was based on the the reality that women were already living in humiliating and oppressive conditions within the family.

Justice Sikri observed that on the basis of the changed status of women, the Law Comission of India in its 42nd report given in the year 1973 recommended the inclusion of women as well.

Constitutionality of section 497 of the IPC came under challenge before the Supreme Court in the case of Sowmithri Vishnu versus Union Of India. The argument was that section 497 of the IPC violated Article 14 as well as Article 21 of the Constitution.

Three contentions were raised in this argument. Firstly, section 497 confers upon the husband the right to prosecute the adulterer but it does not confer the right upon the wife to prosecute the women with whom the husband has committed adultery. Secondly, section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman and thirdly, section 497 does not take into consideration cases where the husband has sexual relations with an unmarried woman. As a result, husbands have a free licence under the law to have extra-marital sexual relations with unmarried women. It was thus contended that section 497 was a flagrant instance of ''gender discrimination'', ''legislative despotism'' and male chauvinism. Provisions contained in this section were a kind of ''Romantic Paternalism'' which stemmed from the assumption that women, like chattels, are property of men.

Justice Sikri observed that the Justice Malimath Committee while suggesting reforms in the criminal justice system of the country in 2003, had recommended the amendment of section 497 of the IPC by including women as offenders and recasted as '' Whosoever has sexual relationship with the spouse of any other person is guilty of adultery''. The committee expressly stated that the object of this section was to preserve the sanctity of marriage. Society abhors marital infidelity therefore, there is no reason for not meting out similar treatment to a wife who has sexual intercourse with a man other than her husband.

Justice Sikri observed that the National Commission of Women has however, not only objected to this suggestion of inclusion of the wife, but it has gone to the extent of recommending that adultery should be converted from a criminal offence to a civil offence.

It has also recommended that section 198 of Criminal Jurisprudence (CRPC) be amended in order to allow women to file complaints against unfaithful husbands.

Justice Sikri added that, '' psychologist Lucy Gray says there is not a single person on earth who does not have an extra-marital relationship-be it sexually or mentally. If anybody denies it, he or she is either a hypocrite or not worth it. In the dictionary of psychology, adultery is neither a sin nor a sacred act. It is more a matter of body than of heart. It is the first and last satisfaction of the sexual urge. Sexual fidelity is not the same as love. An adulterer may be as genuinely in love with his spouse as she is in love with him.

UNI