The Court was deciding a 2010 criminal complaint involving allegations of adultery under the now struck down Section 497 of the Indian Penal Code.
- Advocate Satish Kumar appeared for the husband.
- Advocate JS Rawat appeared for the accused man.
- Additional Public Prosecutor Meenakshi Dahiya appeared for the State.
The Delhi High Court recently warned against treating women like property by referring to the treatment of Draupadi in the Mahabharat, while deciding a 2010 case involving allegations of adultery under the now-struck-down provision of Section 497 of the Indian Penal Code (IPC).
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In an April 17 ruling, Justice Neena Bansal Krishna observed that despite the well-documented plight of Draupadi in the Mahabharata and the consequences which followed, a misogynistic and patriarchal mindset that women are property continued to prevail in our society.
“The woman being considered as the property of the husband and its devastating consequences are well documented in Mahabharat, wherein Draupadi was put on stake in a game of gamble by none other than her own husband Yudhishtr, a where other four brothers were the silent spectators and Draupadi had no voice to protest for her dignity. As it happened, she was lost in the game of gamble, and what followed was the great war of Mahabharat, leading to mass loss of lives and wiping out of many of the family members. Despite having such an example to demonstrate the consequence of the absurdity of treating a woman as a chattel, the misogynistic mindset of our Society understood this only when the Apex Court declared Section 497 IPC as unconstitutional in the case of Joseph Shine v. Union of India,” the Court stated.
Section 497 of the IPC used to criminalise the offence of adultery, but only the man with whom a married woman had an affair could be held liable. Further, if the husband of the woman gives his consent for such an affair, no offence would have arisen.
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In 2018, the Supreme Court declared Section 497 of the IPC unconstitutional after noting that it was premised on assumptions that women were like chattel or property.
The adultery case before the Delhi High Court, however, dated back to 2010. The case concerned a couple who had married in 1998. In 2010, the husband discovered that his wife was having an adulterous relationship with another man. He found from his wife’s call logs that she used to talk to the man at odd hours of the night. He later found that the wife had stayed overnight with the man at a hotel in Lucknow.
He first served a legal notice on his wife asking her to stop the adultery. Thereafter, he proceeded to file a criminal complaint of adultery against the man with whom she allegedly had the extramarital affair.
The trial court discharged the adulterer, citing a lack of evidence of any sexual relations between the wife and the man. This decision was overturned by the Sessions Court, which proceeded to summon the man to face criminal trial.
The man then moved the Delhi High Court, urging it to quash the summons issued to him. In the meantime, the wife obtained a divorce from her husband in 2016.
The High Court considered whether the Joseph Shine verdict of 2018, passed by the Supreme Court that struck down Section 497 IPC as unconstitutional, would apply retrospectively to the present case lodged in 2010.
The Court concluded that the 2018 verdict would apply retrospectively.
“This aspect has been considered in the judgment Maj. Genl. A.S. Gauraya & Anr. Vs. S.N. Thakur 1986 AIR 1440 wherein the Apex Court had held that declaration of law by the Supreme Court applies to all the pending proceedings even with retrospective effect,” the Court noted.
The Court added that the trial court had rightly observed that there can be no presumption of sexual intercourse only because the wife stayed overnight in the same room with the man at a hotel in Lucknow.
It, therefore, set aside the summoning order and discharged the accused man from the criminal case.
“The gravamen of Section 497 is that they must have indulged in the act of adultery, i.e., they must have had sexual intercourse for which there is no oral or documentary evidence, but is based on a presumption which cannot be considered prima facie for summoning of the Petitioner. The essential ingredients of Section 497 IPC were therefore not made out,” the Court held.
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