husband concerned alone is having the legal right to file a
complaint if the offence is adultery. Of course, in the absence
of such husband, some other person can make complaint in
respect of the said offence under the conditions provided in
the proviso to sub-section (2) of Section 198 of the Code.
When a person is having the status as a husband, he is
aggrieved by the offence under section 497 of IPC and hence
he is having every right to be a complainant. However, once he
obtains divorce from his wife, his status as the husband stands
lost. The word used in sub-section (2) of Section 198 is
'husband' and not 'the former husband'. It is implicit from the
section that the husband alone and not the former husband is
having the right to file the complaint alleging the offence
under section 497 of IPC against the adulterer.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.SUDHEENDRA KUMAR
WEDNESDAY, THE 30TH DAY OF MARCH 2016
Crl.Rev.Pet.No. 1220 of 2007 ( )
SIVADASAN,
v
THE STATE OF KERALA
Citation:2016 CRLJ 3306
The accused in C.C.No.158/2003 on the files of the
Court of the Judicial Magistrate of First Class-II, (Mobile)
Kozhikode, filed this Revision petition challenging the
concurrent finding of conviction and sentence passed by the
courts below under Section 497 IPC. The above case arose
out of a private complaint filed by the second respondent
herein before the trial court alleging offence under section
497 IPC.
2. The prosecution case can be briefly stated as
follows:-
The second respondent herein married Shelvi on
8.12.1989 as per the customary rites and ceremonies of the
parties. Thereafter, they lived together as husband and wife.
Two children were born in the said wedlock. The revision
petitioner was an auto rickshaw driver. He used to take the
children of the second respondent to the school in his auto
rickshaw. The second respondent was a fisherman. He used to
go for his work at about 8.00 a.m., and come back to his house
only at about 5.00 p.m. The wife of the second respondent,
namely, Shelvi alone used to be in the house when the
children were sent to the school. While so, the wife of the
second respondent developed intimacy with the revision
petitioner. It was noticed by PW2 that the revision petitioner
spent much time in the house of the second respondent on
5.12.1998. On getting suspicion, PW2 peeped through the half
wall of the said house. Then PW2 found the wife of the revision
petitioner namely, Shelvi, indulging in sexual relationship
with the revision petitioner. PW2 warned him not to repeat the
same. On 27.12.1998 also, PW2 and another person witnessed
sexual relationship between the wife of the second respondent
and the revision petitioner. On seeing PW2 and the other
person, the revision petitioner ran away from there. The
matter was informed to the second respondent herein by PW2
and the other person. The revision petitioner was well aware
that Shelvi was the legally wedded wife of the second
respondent. The above said act of the revision petitioner was
without the consent or connivance of the second respondent
herein.
3. Before the trial court, PW1 and PW2 were examined
and Ext.P1 was marked for the complainant. No evidence was
adduced on the side of the revision petitioner.
4. The trial court, after considering the evidence on
record, found the revision petitioner guilty under Section 497
of I.P.C., and convicted him thereunder and sentenced him to
rigorous imprisonment for one year and a fine of Rs.2000/-
with a default clause for simple imprisonment for two months.
The appeal filed against the said conviction and sentence was
dismissed by the appellate court.
5. Service is complete on the second respondent.
However, there is no appearance for the second respondent.
6. Heard the learned counsel for the revision petitioner
and the learned Public Prosecutor.
7. The learned counsel for the revision petitioner has
argued that since the complaint was filed by the second
respondent after obtaining divorce, the second respondent
ceased to be the husband of Shelvi at the time of filing the
complaint and consequently, the trial court ought not to have
taken cognizance of the offence on the basis of the complaint
filed by the second respondent herein. The learned Public
Prosecutor has also fairly submitted that since the second
respondent was not having the status of the husband of Shelvi
at the time of filing the complaint, the trial court ought not to
have taken cognizance of the offence on the basis of the said
complaint.
8. Section 497 defines the offence of adultery. The
said section falls under Chapter XX of the Indian Penal Code.
Chapter XX deals with offences relating to marriage. Section
198 of the Criminal Procedure Code (for short 'the Code')
imposes certain restrictions in launching prosecution for
offences against marriage. As per the said provision, no court
shall take cognizance of any of the offences punishable under
the aforesaid Chapter XX except upon a complaint by some
person "aggrieved by the offence". Sub-section (2) of Section
198 of the Code provides that no person other than the
husband of the woman shall be deemed to be aggrieved by any
offence punishable under Section 497 or Section 498 IPC. The
proviso to sub-section (2) of Section 198 of the Code provides
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. In this context, it is profitable to read
sub-section (2) of section 198 of the Code, which is extracted
as follows:-
"198. Prosecution for offences against marriage -
(1)..........
"(2) For the purpose of sub-section (1), no person
other than the husband of the woman shall be
deemed to be aggrieved by any offence 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 on the Court,
make a complaint on his behalf.
(3)......................
(4).......................
(5)......................
(6)......................
(7)........................"
9. The above said section makes it clear that the
husband concerned alone is having the legal right to file a
complaint if the offence is adultery. Of course, in the absence
of such husband, some other person can make complaint in
respect of the said offence under the conditions provided in
the proviso to sub-section (2) of Section 198 of the Code.
When a person is having the status as a husband, he is
aggrieved by the offence under section 497 of IPC and hence
he is having every right to be a complainant. However, once he
obtains divorce from his wife, his status as the husband stands
lost. The word used in sub-section (2) of Section 198 is
'husband' and not 'the former husband'. It is implicit from the
section that the husband alone and not the former husband is
having the right to file the complaint alleging the offence
under section 497 of IPC against the adulterer.
10. In Sowmithri Vishnu v. Union of Indian and Another
(1985 AIR SC 1618), the complaint was filed by the husband
against the accused therein under Section 497 of IPC during
the pendency of divorce petition against the wife, alleging that
the accused had adulterous relationship with his wife.
Thereafter, the husband obtained divorce during the pendency
of the complaint on the ground of desertion. In the said
circumstances, the Apex Court quashed the complaint and
further proceedings against the accused in the said case
holding thus:-
" There was general agreement before us
that since the petitioner's husband has
already obtained divorce against her on the
ground of desertion, no useful purpose will
be served by enquiring into the allegation
whether she had adulterous relationship
with Dharma Ebenezer, against whom the
husband has lodged a complaint under
section 497 of IPC. Accordingly, we quash
that complaint and direct that no further
proceedings will be taken therein".
11. In Sowmithri Vishnu (supra), the complaint was filed
at the time when the complainant was having the status as
husband. In this case, Ext.P1 would show that the divorce was
obtained by the second respondent on 29.4.2000. It was an ex-
parte order. However, the said order became final and
conclusive, as is evident from the judgment of the trial court.
It is also borne out from the evidence of PW1 that PW1, who is
the second respondent herein, married another lady after the
divorce and a child was also born in the said wedlock. The
stability of marriage is not an ideal to be scorned. The
offence of adultery, as defined in section 497, is considered by
the Legislature as an offence against the sanctity of the
matrimonial home. The interest of society requires that the
adulterous relationship must be punishable by law. So far as a
person is having the status as a husband, he is aggrieved by
the adulterous relationship of his wife with another person.
However, after he ceased to be a husband, he cannot be said
to be an aggrieved person as his interest is not to redress his
grievance, but to harass his eschewed wife. In view of the
above reasons, the husband alone and not the former
husband can be an aggrieved person entitled to file complaint
alleging offence under Section 497 IPC against the accused
alleging adulterous relationship with his wife. From a bare
reading of sub-section 2 of Section 198 IPC also, it is clear
that the husband of the woman alone shall be deemed to be
aggrieved by the offence under Section 497 IPC and not the
former husband.
12. In this case, it is borne out from the evidence of PW1
that a petition for maintenance to the children was filed
before the Court by Shelvi. Thereafter only, the present
complaint was filed. The present complaint was filed after
more than 5 = months of obtaining divorce as per Ext.P1.
Therefore, there is no reason for the petitioner to be aggrieved
after having obtained divorce and re-married. For the said
reason, I am of the view that the complaint filed in this case
was only to persecute the eschewed wife of the petitioner.
Since the complaint was filed not by the husband of the
woman, the court ought not have taken cognizance of the
offence on the basis of the said complaint. For the aforesaid
reason, the conviction and sentence passed by the courts
below cannot be sustained and consequently, I set aside the
same.
In the result, this Revision Petition stands allowed,
setting aside the conviction and sentence passed by the
courts below under Section 497 IPC and the revision
petitioner stands discharged for lack of jurisdiction in taking
cognizance of the offence by the Magistrate in the absence of
a complaint made by the husband . The bail bond of the
revision petitioner stands cancelled and the revision petitioner
is set at liberty.
Sd/-B.SUDHEENDRA KUMAR,JUDGE.
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