Section 497 of the IPC Adultery — part of the British-enacted penal code of 1860 — criminalised adultery, but did so “asymmetrically”: that is, only the man — and not the woman — who engaged in adultery could be punished. Moreover, only the husband could bring a prosecution for adultery; but he would have no case if he had “consented” or “connived” in the adulterous act.
In September 2018, Section 497 of the Indian Penal Code (IPC) was decriminalised in India (it remains a “civil offence”, that can be a ground for divorce).
However, in its latest ruling, Madras High Court has observed that extramarital affairs can cause grave mental trauma and mental health issues leading to serious consequences in the matrimony, and that in turn, would amount to mental cruelty under Section 498(A) IPC.
Justice D. Bharatha Chakravarty however added that when deciding whether a conduct amounted to cruelty, the Court has to look at the facts and circumstances of the case.
In its order, the Bench noted that the evidence on record proves the existence of an extramarital relationship that has gone to the roots of the marriage and severely affected the mental health of the wife. This ultimately resulted in the wife leaving the matrimonial home.
The observation was made while confirming the conviction of a husband accused of engaging in an extramarital relationship with another woman while the marriage with the respondent wife was still valid.
The counsel for the petitioner/ accused had previously argued that Trial Court and the lower Appellate Court erred by considering the evidence in a perverse manner, warranting the High Court’s interference by exercising its reversional jurisdiction.
The counsel made special reference to the lower appellate court judgment that confirmed the conviction of the trial court in one sentence as a glaring example of such illegality. The counsel for the victim and the government argued that the court’s reversional powers only permit limited judicial review and the conviction by the lower courts should not be interfered with by initiating a full re-appreciation of evidence.
Before the trial court, the respondent wife had accused the husband, his family members and the woman alleged to have been involved in the extra marital relationship of offences under:
- Section 406
- Section 494
- Section 506(ii)
- Section 498-A
of the IPC.
Though the wife argued that the husband contracted a second marriage and neglected the her which constitutes the offence of bigamy, it was not proved beyond reasonable doubt. Therefore, the trial court convicted petitioner husband alone for the offence of mental cruelty under Section 498(A) and acquitted all others in toto with regards to all other offences.
Additionally, the counsel for the respondent wife had pointed out three angles to prove that mental cruelty was committed against her by the husband. Firstly, she submitted that she was subjected to physical and mental torture during 2000-2005 in demand of more dowry. However, the court noted that the wife herself has specifically averred that the petitioner/ accused and the respondent wife was living happily during the said period. The court said,
Ex-D1 (legal notice), is caused by the PW-1 and therefore, once she admits in the cross-examination that the notice is given on her instructions and the same being marked, it throws doubt on the allegations levelled.
The second angle relied upon by the respondent wife was a specific incident that occurred in 2012, which was later admitted by her as not happened in her cross-examination.
It was on the submission about the husband’s extra marital relationship that the court was convinced about the mental cruelty meted out to her so as to meet the requirements of Section 498(A) IPC.
Madras High Court
Relying on the dictum in K.V. Prakash Babu v. State of Karnataka, the court noted as below:
This Court has to read the evidence of PW.1, PW.7 & PW.8 as a whole and a proper reading would convey the essence that cruelty, predominantly mental cruelty, was unleashed on PW.1 (Wife), on account of the extramarital affairs developed by the petitioner herein…
But the perusal of the above dictum (K.V Prakash Babu’s case) would itself make it clear that the Court has to take into consideration the said abnormal behaviour with the facts and circumstances of the case and it has to be decided whether the conduct amounted to cruelty. Therefore, looking at the evidence of PW.1, PW.7 & PW.8, which is on record, it is clear that there was extramarital relationship.
It has caused such an effect on the mental health of PW.1, which resulted in serious domestic discord and her leaving the matrimonial home. As a matter of fact, as per the evidence on record, PW.1 went out of the matrimonial home on 16.11.2005.
In K.V Prakash’s case, the apex court had in November 2016 (prior to decriminalisation of adultery) held that mental cruelty cannot be given a generalised meaning and can only be ascertained based on the facts and circumstances of each case. The court had also mentioned that one out of the two opposing outcomes are probable while answering if an extramarital affair can amount to mental cruelty. In that judgement, the court had noted,
Extra marital relationship, per se, or as such would not come within the ambit of Section 498(A) of IPC. It would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case.
The Madras High Court further noted in K.V Prakash Babu that the husband being in an extramarital relationship and the wife having some suspicion about it won’t normally constitute mental cruelty when read in tandem with the offence of abetment to suicide under Section 306 IPC (abetment to suicide).
Coming back to the case before Madras High Court, the bench also perused the birth certificate of the child born to the husband in the extramarital relationship.
During the course of the hearing of the learned Government Advocate (crl.side) appearing for the first respondent, also produced the Birth certificate, evidencing the birth of a child for the petitioner/accused and the said A6, which was born on 17.09.2006 itself. Therefore, the Court cannot close its eyes to the hard evidence and the facts of this case.
The court concluded that there was no illegality committed by the trial court or the lower appellate court while convicting the accused of mental cruelty. However, the court deemed it fit to modify the sentence so as to reduce the term of imprisonment from one year to six months.
While upholding the conviction, the Madras High Court also refused to consider the petitioner’s baseless allegations levelled against the wife about her having an extra marital affair with another man. While partially allowing the criminal revision petition, the high court reiterated,
Considering all the factors cumulatively, I hold that the action of the petitioner/accused in having extramarital relationship, which has further caused grave mental trauma and affected the mental health of PW.1, leading to serious circumstances, in conjunction with the act of PW.1 being forced to leave the matrimonial home, would amount to cruelty to her within Section 498(A) of IPC.
Firstly, MDO is not promoting extra martial affairs, however, we are merely brining out how laws have been designed to give complete clean chit to women, while trapping Men with different interpretations of the IPC.
When Adultery has been decriminalised, it should remain a civil offence and a ground for divorce as remedy to the aggrieved spouse. Let us look at the hypocrisy of our judiciary when Genders are reversed.
April 2007 – Rajasthan High Court
The Rajasthan High Court allowed a married woman, Manju, to live with her lover, Suresh. Justices GS Mishra and KC Sharma the said,
It is improper to pass an order to hand over any unwilling married woman to her husband with whom she does not want to stay. The court also said that nobody should consider an adult woman as a consumer product.
Read Here: Married woman can live with her lover: court
Jun 2021: Allahabad High Court
Division Bench of Justice Kaushal Jayendra Thaker and Justice Dinesh Pathak had observed that the Woman was already married, and was in a live-in relationship with another man. Eventhough protection to such couple was denied, the court categorically stated,
We are not against the live in relation.
November 2021: Allahabad High Court
The Court noted that for certain personal reasons, the married woman/petitioner no. 1 is not residing with her husband or her in-laws. The court said,
Any such attempt from any corner either from her family members or even from police authorities will be a direct infringement and interference in her fundamental rights vested in her by the Constitution namely right to life and liberty both.
December 2020 – Bombay High Court, Nagpur Bench
The Nagpur bench of the Bombay high court upheld the right of a woman to be the sole nominee for the service benefits of her husband, a retired watchman from the maintenance command of the Indian Air Force. However, the court has upheld the family court order despite the fact that the woman had left behind her husband and three children and eloped with a 19-year-old man.
While rejecting an appeal jointly filed by the husband and his second wife, the bench of Justice AS Chandurkar and justice NB Suryavanshi said,
The allegations of adultery have no relevance in the present case, as the same do not in any manner affect the merits of the claim
December 2021: Delhi High Court
The Delhi High Court in a maintenance case ruled,
The issue as to whether the respondent is living in adultery or not can be decided only after evidence is lead by both the parties. At the time of fixing interim maintenance this Court is not inclined to go into this question at this juncture.
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