CASE ANALYSIS

OF
SOUMITHRI VISHNU V. UNION OF INDIA

By
VIKAS KUMAR RATHOR
2ND YEAR
PSIT COLLEGE OF LAW,KANPUR
Mob: 9794465627
Email ID: [email protected]

www.probono-india.in
 INTRODUCTION
Section 497 of the Indian Penal Code, 1860 makes adultery a criminal offence by
imposing culpability on a man who has sexual intercourse with another person’s
wife. In this present matter, Soumithri Vishnu has approached the Supreme Court
under Article 32 of the Constitution of India for quashing the complaint, lodged by
her husband against Dharma Ebenezer under section 497 of Indian Penal Code for
committing adultery with her wife, on the ground that the very provision is violation
of Article 14, 15 and Article 21 of the Indian Constitution and hence it is
unconstitutional. As in the earlier cases the Supreme Court clearly stated that
Section 497 does not offend Article 14, 15 and Article 21 of the Constitution. In this
case, the Hon’ble Supreme Court while dismissing the petition, quashed the
complaint lodged by petitioner’s husband against Dharma Ebenezer and held that
Section 497 does not offend Article 14, 15 and 21 of the Indian Constitution.

FACTS
It was stated that, Soumithri Vishnu filed a petition for divorce against her husband, J. Vishnu
Naidu on the ground of desertion. But the trial court dismissed that petition of Soumithri
Vishnu, holding that the petitioner/wife herself had deserted the husband and not the other
way about.
Thereafter, the husband filed a petition for divorce against her wife on two ground that were
firstly, that his wife had deserted him and secondly, that she was living in adultery with a
person called Dharma Ebenezer. The wife conceded in that petition that in view of the finding
recorded in the earlier proceeding that she had deserted her husband, a decree for divorce
may be passed against her on the ground of desertion. But the she contended further that the
Court should not adjudicate upon the question of adultery since it was unnecessary to do so.
That plea of the respondent was opposed by the husband and it was contended by the husband
that he was entitled to obtain a decree of divorce against the petitioner/wife not only on the
ground of desertion but also on the ground of adultery and that, there was no reason why he
should be denied an opportunity to show that the petitioner/wife was living in adultery. The
contention of the husband was accepted by the trial court but, in a revision application filed
by the petitioner, the High Court accepted the plea of petitioner and held that since, the
finding recorded in the earlier petition was binding on the parties, a decree for divorce had to
be passed in favor of the husband on the ground of desertion and that, it was unnecessary to
inquire into the question of adultery. We are informed at the Bar that, pursuant to the High
Court's view, a decree for divorce has already been passed in favor of the husband on the
ground that the wife had deserted her husband.
While the petition of husband for divorce was pending, he filed a complaint against Dharma
Ebenezer under section 497 of the Penal Code charging him with having committed adultery
with his wife. This writ petition has been filed by the petitioner for quashing that complaint
on the ground that the very provision, section 497 of the Penal Code which creates the
offence of 'adultery', is unconstitutional.

ISSUES RAISED

In this case, Mrs. Nalini Chidambaram, on behalf of the petitioner, argued that Section 497 of
the Penal Code offends Article 14 of the Constitution of India. The section 497 makes an
irrational classification between man and women and unjustifiably denies to women the right
which is given to men. This argument rests on the following three grounds:

(1) Section 497 confers upon the husband the right to prosecute the person who has
committed adultery with her wife but, it does not confer any right upon the wife to prosecute
the woman with whom her husband has committed adultery.

(2) Section 497 of Indian Penal Code does not provide any right to the wife to prosecute the
husband who has committed adultery with another woman.

(3) Section 497 of Indian Penal Code does not take in cases where the husband has sexual
relations with an unmarried woman, with the result that husbands have, as it were, a free
license under the law to have extra-marital relationship with unmarried women.

Another issue before the court was that the Section 497 is unconstitutional as it violates the
Article 21 of the Indian Constitution. As in earlier cases, Francis Coralie v. Union Territory
and Board of Trustees, Fort of Bombay v. Nadkarni, the Hon’ble Court held that the right to
life also include right to reputation. Relying upon these decisions the counsel, on behalf of
the petitioner, contended that if the outcome of a trial is likely to affect the reputation of a
person adversely, he or she ought to be entitled to appear and be heard in that trial. If any law
which does not confer upon such a person the right of being heard is violative of Article 21.
As section 497 of Indian Penal Code does not contain a provision that she must be impleaded
as a necessary party to the prosecution or that she would be entitled to be heard, the section is
violative of Article 21 of the Indian Constitution.

The learned counsel complains that Section 497 is flagrant instance of 'gender
discrimination', 'legislative despotism' and 'male chauvinism'. It is urged that the section may,
at first blush, appear as if it is a beneficial legislation intended to serve the interests of women
but, on closer examination, it would be found that the provision contained in the section is a
kind of 'Romantic Paternalism', which stems from the assumption that women, like chattels,
are the property of men.

GLOBAL APPROACH

Adultery considered as not just a civil offence but also a criminal offence in many countries
such as Saudi Arabia, the Philippines and also 20 states in the US but in many countries, it is
not considered as criminal offence.

1. Countries Governed by Islamic Law:

Adultery or extra-marital sexual relationship with other than his or her spouse is considered
an offence under Islam. Thus, adultery is declared as a legally punishable offence in several
countries governed by Islamic Law or Sharia. These include Somalia, Saudi Arabia, Brunei,
Iran, Sudan, parts of Afghanistan and Nigeria.

In Pakistan, apart from Sharia, adultery is treated as a criminal offence by the Hooded
Ordinance, promulgated in 1979.

2. The Philippines:

In Philippines, adultery is treated as a criminal offence with a conservative Christian

majority as the Family Law in the country bans infidelity. If a woman is found sexually
cheating on her husband under any circumstances. It is a punishable crime but on the other
hand if a man is charged with 'concubinage', the parameters for which may vary. It may
require him to be living with his mistress, having relations under 'scandalous circumstances',
or bringing the mistress into his marital home.

3. Taiwan and China:

In Taiwan, Adultery is declared as a criminal offence that attracts a jail term of up to 1 year
for both men and women. But in China, adultery is not considered as a criminal offence but it
is a civil offence punishable by fines and could also considered as a ground for divorce.
4. United States:

In US, 20 states consider adultery an offence. While it is considered a 'misdemeanor' in most

of these states, states such as Wisconsin, Michigan, Idaho, Oklahoma and some others deem
it a felony. In Wisconsin, for instance, a person could be charged with three and half years of
jail time or a 10,000 USD.

ANALYSIS

To be able to adjudicate upon the aforementioned matter, the Hon’ble Supreme Court of
India explained the definition of adultery. Section 497 of the Indian Penal Code, 1860
makes adultery as criminal offence. And stated that:

"Whoever has sexual intercourse with a person who is and whom he knows or has reason 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 the offence of adultery,
and shall be punished with imprisonment of either description for a term which may extend to
five years, or with fine, or with both. In such case the wife shall not be punishable as an
abettor."

The Hon'ble court held that these issues doesn’t have legal basis, as the definition of adultery
under section 497 of Indian Penal Code stated that the offence of adultery can only be
committed by a man not by a woman. The court held that the definition of adultery under
section 497 must be amended to extend the ambit of the offence of adultery so that both man
and women, whoever engaged in that such crime should be punishable for adultery. A woman
who is involved in illicit relationship with a man other than her husband, is just victim if the
crime not author of the crime and by the very definition of the adultery it can only be
committed by a man not by women so the person who break the matrimonial home of
someone must be brought under the net of law. The person who is engaged in any offence can
only be prosecuted, and as per the definition of adultery the man is one, who in the main
author of the crime of adultery, so only he can be prosecuted not a woman. The law doesn’t
provide any special privilege to man to be licentious by gallivanting with unmarried women
but it just makes a special provision which deal with extra marital relationship and declare it
as criminal offence. The legislation is entitled to deals with such offence committed by
husband and woman is also entitled to take civil action for the separation. Hence, the Court
held that Section 497 is not violative of Article 14 and Article 15 of the Indian Constitution.
On the second issue raised by the petitioner, the Supreme Court held that it is true that there
is no provision regarding the hearing of the married women with whom the offence of
adultery has committed but it doesn’t mean that she is not entitled to being heard by the court.
The married women, with whom the offence has committed, can make an application in the
trial court that she should be heard before finding the record on the offence of adultery. The
right of hearing is one of the essential principles of natural justice. So, the issue that Section
497 doesn’t contains any provision for hearing of married women with whom the offence of
adultery has committed does not render that the section 497 violates article 21 of the Indian
constitution. Hence it is not unconstitutional.

JUDGMENT

The Hon’ble Bench of the Supreme Court of India Comprising of Chief Justice Y.V.
Chandrachud, Justice R.S. Sen and Justice R.S.rendra Nathhese, on 27 May, 1985, while
dismissing the petition filed by the Soumithri vishnu held that these issues which have
raised by the petitioner have a strong emotive appeal but do not have valid legal basis to rest
upon. Taking the first of these three grounds, the offence of adultery, by its very definition,
can be committed by a man and not by a woman. The argument really comes to this that the
definition should be recast by extending the ambit of the offence of adultery so that, both the
man and the woman should be punishable for the offence of adultery. Were such an argument
permissible, several provisions of the penal law may have to be struck down on the ground
that, either in their definition or in their prescription of punishment, they do not go far
enough. For example, an argument could be advanced as to why the offence of robbery
should be punishable with imprisonment for ten years under section 392 of the penal Code
but the offence of adultery should be punishable with a sentence of five years only :
'Breaking a matrimonial home is not less serious a crime than breaking open a house'. Such
arguments go to the policy of the law, not to its constitutionality, unless, while implementing
the policy, any provision of the Constitution is infringed. We cannot accept that in defining
the offence of adultery so as to restrict the class of offenders to men, any constitutional
provision is infringed. It is commonly accepted that it is the man who is the seducer and not
the woman. This position may have undergone some change over the years but it is for the
legislature to consider whether Section 497 should be amended appropriately so as to take
note of the 'transformation' which the society has undergone.
 The Law Commission of India in its 42nd Report, 1971, recommended the retention of
Section 497 in its present form with the modification that, even the wife, who has sexual
relations with a person other than her husband, should be made punishable for adultery. The
suggested modification was not accepted by the legislature. Mrs. Anna Chandi, who was in
the minority, voted for the deletion of Section 497 on the ground that "it is the right time to
consider the question whether the offence of adultery as envisaged in Section 497 is in tune
with our present-day notions of woman's status in marriage". The repot of the Law
Commission show that there can be two opinions on the desirability of retaining a provision
like the one contained in Section 497 on the statute book. But we cannot strike down that
section on the ground that it is desirable to delete it.

In so far as the second of the three grounds is concerned, section 497 does not envisage the
prosecution of the wife by the husband for 'adultery'. The offence of adultery as defined in
that section can only be committed by a man, not by a woman. Indeed, the section provides
expressly that the wife shall not be punishable even as an abettor. No grievance can then be
made that the section does not allow the wife to prosecute the husband for adultery. The
contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship
with another man, is a victim and not the author of the crime. The offence of adultery, as
defined in section 497, is considered by the Legislature as an offence against the sanctity of
the matrimonial home, an act which is committed by a man, as it generally is. Therefore,
those men who defile that sanctity are brought within the net of the law. In a sense, we revert
to the same point: Who can prosecute whom for which offence depends, firstly, on the
definition of the offence and, secondly, upon the restrictions placed by the law of procedure
on the right to prosecute.

The self-same answer holds good in the case of the third ground also. Law does not confer
freedom upon husbands to be licentious by gallivanting with unmarried woman. It only
makes a specific kind of extra-marital relationship an offence, the relationship between a man
and a married woman, the man alone being the offender. An unfaithful husband risks or,
perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal
with the evil where it is felt and seen most: A man seducing the wife of another. Mrs.
Chidambaram says that women, both married and unmarried, have changed their life style
over the years and there are cases where they have wrecked the peace and happiness of other
matrimonial homes. We hope this is not too right but, an under-inclusive definition is not
necessarily discriminatory. The alleged transformation in feminine attitudes, for good or bad
may justly engage the attention of the law-makers when the reform of penal law is
undertaken. They may enlarge the definition of adultery to keep pace with the moving times.
But, until then, the law must remain as it is. The law, it is, does not offend either Article 14 or
Article 15 of the Constitution. Incidentally, the demand of the petitioner that sexual
relationship of a husband with an unmarried woman should also be comprehended with in the
definition of 'adultery' is a crusade by a woman against a woman. If the paramour of a
married woman can be guilty of adultery, why can an unmarried girl who has sexual relations
with a married man not be guilty of adultery? That is the grievance of the petitioner.

Counsel is right that section 497 does not contain a provision for hearing the married woman
with whom the accused is alleged to have committed adultery. But that does not justify the
proposition that she is not entitled to be heard at the trial. We have no doubt that if the wife
makes an application in the trial Court that she should be heard before a finding is recorded
on the question of adultery, the application would receive due consideration from the Court.
There is nothing, either in the substantive or the adjectival criminal law, which bars the court
from affording a hearing to a party, which is likely to be adversely affected, directly and
immediately, by the decision of the Court In fact, instances are not unknown in criminal law
where, though the prosecution is in the charge of the Public Prosecutor, the private
complainant is given permission to oversee the proceedings. One step more, and the wife
could be allowed a hearing before an adverse finding is recorded that, as alleged by her
husband, the accused had committed adultery with her. The right of hearing is a concomitant
of the principles of natural justice, though not in all situations. That right can be read into the
law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not
contained in section 497 cannot render that section unconstitutional as violating Article 21.

Instead of embarking upon this discussion, we could have as well dismissed the writ petition
by relying upon the decision of a Constitution Bench of this Court in Yusuf Abdul Aziz v.
The State of Bombay, which held that section 497 of the Penal Code does not offend Articles
14 and 15 of the Constitution. However, the petitioner's counsel had many more arguments to
advance and since, more than 30 years have gone by since the decision in Yusuf Abdul Aziz
was given, we thought that we might examine the position afresh, particularly in the light of
the alleged social transformation in the behavioral pattern of women in matters of sex.

Though it is true that the erring spouses have no remedy against each other within the
confines of section 497 of the Penal Code, that is to say, they cannot prosecute each other for
adultery, each one has a remedy against the other under the civil law, for divorce on the
ground of adultery. 'adulterer' under the civil law has a wider connotation than under the
Penal Code. If we were to accept the argument of the petitioner, Section 497 will be
obliterated from the statute book and adulterous relations will have a freer play than now. For
then, it will be impossible to convict anyone of adultery at all. It is better, from the point of
view of the interests of the society, that at least a limited class of adulterous relationship is
punishable by law. Stability of marriages is not an ideal to be scorned.

There was general agreement before us that since the petitioner's husband has already
obtained divorce against her on the ground of desertion by the trial court, no useful purpose
will be served by inquiring into the allegation whether she had adulterous relationship with
Dharma Ebenezer, against whom the husband has lodged a complaint under section 497 of
the Penal Code. Accordingly, we quash that complaint and direct that no further proceedings
will be taken therein.

In the result, the writ petition is dismissed. There will be no order as to costs.

REFERENCES:

 Smt. Sowmithri Vishnu vs Union of India, 1985

 Section 497, Indian Penal Code, 1860
 The Constitution of India, 1950
 Francies Coralie v. Union Territory AIR 1981
 Board of trustee, fort of Bombay V. Nadkarni, AIR 1983
 Yusuf Abdul Aziz v. The State of Bombay, 1954
 BRIEF ABOUT AUTHOR

Vikas Kumar Rathour is pursuing B.A. LL. B (Hons.) from PSIT College of Law, Kanpur.
He is currently an intern and also Campus Ambassador in Probono India. He published many
articles in various legal platform. He is guest legal correspondent and campus ambassador of
LatestLaws.com. He is Co spokesperson of PSIT Law club “The Legal Express”. He has
interest in Constitutional law, Family law and the law of Contract.