SMT. SOWMITHRI VISHNU versus UNION OF INDIA & ANR.

Citation: [1985] SUPP. 1 S.C.R. 741 · Decided: 27-05-1985 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Dismissed

Judgment (excerpt)

SMT. SOWMITHRI VISHNU 
v. 
UNION OF INDIA & ANR. 
May 27, 1985 
[Y.V. CHANDRACHUD, C.J., R.S. PATHAK AND AMARENDRA 
NATN SEN, JJ.J 
Indian Penal Code, s. 497-Constitutional validity of. 
741 
During the pendency of a divorce petition against the petitioner/wife on 
the grounds of desertion and adultery, the husband al&o filed a complaint 
against one Dharma Ebenezer u/s. 497 of the Penal Code charging him with 
having committed adultery with the petitioner. Thereafter the petitioner filed 
this writ petition for quashing the complaint on the grounds (1) that s. 497 of 
the Penal Code is violative of Art. 14 of the Constitution because, by making 
an irrational classification between men and women, it unjustifiably denies to 
women the right which is given to men 
This argument rests on the followin& 
three grounds - (i) Section 497 confers upon the husband the right to prosecute 
the adulterer but, it does not confer any right upon the wife to prosecute the 
woman with whom her husband has committed adultery; (ii) Section 497 does 
not confer any right on the wjfe to prosecute the husband who has committed 
adultery with another woman; and, (iii) Section 497 does not take in cases 
where the husband has sexual relations with an unmarried women, with the 
result that husbands have, as it were, a free licence under the law to have 
extramarital relationship with unmarried women; and t2) That the right to life 
includes the right to reputation and therefore if the outcome of a trial is likely 
to affect the reputation of a person adversely, he or she ought to be entitled 
appearl and to be heard in that trial and since s. 497 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 bad as violating 
Art. 21 of the Constitution. 
Dismissing the writ petition, 
HELD: I (i) The law, as it is, does not offend Art. 14 or IS of the 
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Constitution. The offence of adultery by its very definition, can be committed 
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by a man and not by a woman: The argument of the petitioner 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. Where 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 
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far enough. Such arguments go to the policy of the law, not to its constitutiona .. 
lity, unless while implementing the policy, any provision of the Constitution 
is infrinKed. Therefore, it cannot be accepted that in defining the offence of 
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742 
SUPREME COURT REPORTS 
[! 985] SUPPL. s.c.R. 
adultery so as to restrict the class of offenders to men, any constitutional 
provision is infringed. However, it is for the legislature to consider whether 
Section 497 should be amended appropriately so as to take note of the 'trans-
formation' which the society has undergone. [745 E-F; G-H; 746A] 
1 (ii) 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 n1an, is a victim and not 
the author of the crime. Tne offence of adultery, as defined ins. 497 is con-
sidered by the Legislature as an offence against the sanctity of the matrimonial 
home, an act which is corrimitted by a n1an, as it generally is. Therefore, 
those men who defile that sanctity are brought within the net of the law. 
[746 D-G] 
1 (iii) Law does not confer freedom upon husbands to be licentious by 
gallivanting with unmarried women. It only makes a specific kind of extra-
marital relationship an offence, the relatiocship between a ~an and a married 
woman, the man alone being the offender. 
An unfaithful husband risks or, 
perhaps, invites a civil action by the wife for separalion. The legislature is 
entitled to deal with the evil where it is felt and seen 1nost: A 1nan s~ducing the 
wifo of another. [746H;

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