Whether disciplinary inquiry can be initiated against any public servant for committing the offence of adultery after joseph shine Judgment?

 In fact, this Court posed the following question. In a given case, the authority is presented with the following set of facts. An officer is proceeded against Under Section 45 of the 1950 Act; the charge against him is adultery; it is alleged, in other words, that he has committed adultery within the meaning of Section 497 Indian Penal Code which has been struck down. Mr. Kaleeswaram Raj, learned Counsel for the original Petitioner, very fairly submits that, the fact that Section 497 Indian Penal Code has been struck down may not stand in the way of the authorities proceeding against the officer with the aid of the provisions contained in Section 45 of the 1950 Act. Of course, he adds that the decision must finally depend upon the play of facts.{Para 22}

23. This Court in the case in question was concerned only with the validity of Section 497 Indian Penal Code and Section 198(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity). This Court spoke through separate but concurrent judgments. Apart from the lead judgment of Hon'ble Mr. Justice Dipak Misra, former Chief Justice of this Court, and with whom, Hon'ble Mr. Justice A.M. Khanwilkar concurred, the other learned Judges wrote separate opinions. However, they agreed that Section 497 Indian Penal Code and Section 198 Code of Criminal Procedure were unconstitutional. The premise on which the provision was struck down was that it offended Articles 14, 15 and 21 of the Constitution.

In this case, this Court had no occasion, whatsoever, to consider the effect of the provisions of the Acts in question. In fact, we may notice that it is not as if this Court approved of adultery. This Court has found that adultery may be a moral wrong (per Hon'ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong.

24. In view of the fact that the scheme of the Acts in the context, in particular, of Article 33 of the Constitution did not fall for the consideration of this Court, we must necessarily observe and clarify that the judgment of this Court in Joseph Shine v. Union of India MANU/SC/1074/2018 : (2019) 3 SCC 39 was not at all concerned with the effect and operation of the relevant provisions in the Acts which have been placed before us by the applicant. In other words, this Court was neither called upon nor has it ventured to pronounce on the effect of Sections 45 and 63 of the 1950 Act as also the corresponding provisions in other Acts or any other provisions of the Acts.

25. We only make this position clear and dispose of the miscellaneous application.

 IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 2204 of 2020 in Writ Petition (Criminal) No. 194 of 2017 and Miscellaneous Application No. 1702 of 2021 in Writ Petition (Criminal) No. 194 of 2017

Decided On: 31.01.2023

Joseph Shine Vs. Union of India (UOI)

Hon'ble Judges/Coram:

K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ.

Author: K.M. Joseph, J.

Citation: MANU/SC/0133/2023.

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Whether Adultery Judgment passed by Supreme Court will operate retrospectively?

Hon'ble Apex Court in Maj. Genl. A.S Gauraya v. S.N Thakur (supra) has held that law laid down by the Supreme Court applies to all pending proceedings even with retrospective effect.

8. There is no dispute about the decision of the Supreme Court in the above cited decisions. In view of the decision of Hon'ble Apex Court holding Section 497 of Indian Penal Code is not an offence, the punishment awarded by the Judicial Magistrate First Class, Bhiwapur in Summary Criminal Case No. 41/2010 is liable to be quashed and set aside. Hence, following order.

In the High Court of Bombay

(Before M.G Giratkar, J.)

Rupesh  Haribhau Mundle, v. Shri Charandas  Fulchand Chandanbawane

Criminal Revision Application No. 2 of 2018

Decided on December 14, 2018

Citation:2018 SCC OnLine Bom 6292

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Whether complaint for adultery can be made jointly by husband and wife?

 Bare reading of Section 497 IPC suggest that
complaint, if any, for punishing the person for having sexual
intercourse with the wife of another man knowingly well that
she is the wife of another man, can only be filed by the
husband and definitely not by woman with whom accused
person had sexual intercourse without the consent or
connivance of husband of that lady.
20. In the present case, admittedly wife of complainant
Bal Krishan is complainant alongwith his husband as she has
also signed that complaint filed before the learned SubDivisional
Judicial Magistrate, Karsog. It is undisputed that
complainants in their complaint had initially prayed for
punishing the accused under Section 497 , 366, 376 of IPC but
as has been observed above, perusal of the complaint,
nowhere suggest that offence under sections 366,376 of IPC is


made out against the accused, rather averments contained in
the complaint suggest that accused despite knowing that Prem
Dassi is legally wedded wife of the complainant Bal Krishan had
developed illicit relation with her and committed sexual
intercourse on several occasions. It is the own case of the
complainant as well as prosecution that taking advantage of
loneliness, accused had enticed and allured her by giving false
promise to marry her and committed sexual intercourse. It is
specifically averred in the plaint that accused promised wife of
the complainant to marry and then indulged in sexual
intercourse meaning thereby wife of the complainant was
consenting party to the sexual intercourse, if any, committed
by the accused. But at this juncture, Court perused the
averments contained in the complaint solely with a view to
ascertain whether the complaint filed and signed by both
husband and wife alleging therein adultery, which punishable
under section 497 IPC, is maintainable or not. After perusing
provision as contained under Section 497 IPC as well as
averments contained in the complaint, this Court has no
hesitation to conclude that once police had concluded that no
prima-facie case exist against the accused under Sections 366
and 376 IPC, complaint, if any, filed by the complainant and his
wife could only be construed to be filed under section 497 of
IPC against the accused. But in the present case, where


admittedly wife of the complainant signed the complaint along
with husband praying therein for punishing the accused under
section 497 IPC, consequently very character of the complaint
has changed and same is not maintainable under Section 497
IPC.
21. After perusing the provision contained in
section 497 IPC, this Court has no hesitation to conclude that
by signing complaint alongwith husband, wherein specific
prayer was made to punish the accused under section 497 IPC,
entire proceedings conducted on the basis of the aforesaid
complaint stands vitiated. Once wife of the complainant joined
her husband in filing the complaint under section 497 IPC, very
character of the complaint gets changed and same cannot be
considered to be filed under section 497 IPC, in any manner.
Section 497 of IPC only authorize husband to file complaint
against the person, who commits sexual intercourse with his
wife against his wishes. But in the present case wife of the
complainant husband joined him in filing complaint and alleges
that accused had developed illicit relation and thereafter
committed sexual intercourse against her wishes by
threatening that in the event of any disclosure made by her, he
would kill her children. Accordingly, this Court after perusing
the complaint Ex.PW1/A as well as statements recorded during
the trial, is of the definite view that complaint, if any, made


against the accused for having committed offence under
section 497 of IPC, signed by husband and wife both is not
maintainable and petitioner-accused could not be proceeded in
any court of law on the basis of complaint Ex.PW1/A.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
 Criminal Revision No.59 of 2007

 Date of Decision: 1st July, 2016
Dharam Dass 
V

State of Himachal Pradesh 
Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Citation: 2016 CRLJ4113

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Whether former husband can file complaint for adultery against adulterer?

 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.

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

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