2018 Archives - B&B Associates LLP Law Firm | Lawyers | Advocates Thu, 26 Nov 2020 09:16:15 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.3 https://bnblegal.com/wp-content/uploads/2020/02/cropped-BNB-LEGAL-Favicon-32x32.png 2018 Archives - B&B Associates LLP 32 32 Joseph Shine Vs Union of India https://bnblegal.com/landmark/joseph-shine-vs-union-of-india/ https://bnblegal.com/landmark/joseph-shine-vs-union-of-india/#respond Thu, 26 Nov 2020 09:14:39 +0000 https://bnblegal.com/?post_type=landmark&p=257948 IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 194 OF 2017 Joseph Shine …Petitioner(s) VERSUS Union of India …Respondent(s) J U D G M E N T Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.) The beauty of the Indian Constitution is that it includes ‘I‘ ‘you‘ and ‘we‘. […]

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]]> IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 194 OF 2017

Joseph Shine …Petitioner(s)
VERSUS
Union of India …Respondent(s)

J U D G M E N T

Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.)

The beauty of the Indian Constitution is that it includes ‘I‘ ‘you‘ and ‘we‘. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the SignaturebNoteVeraifieduty of the Constitution as conceived of. In such a situation, Digitally signed by CHETAN KUMAR Date: 2018.09.27 14:10:12 ItSThe essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written. It is advisable to remember what John Stuart Mill had observed:-

“The legal subordination of one sex to another – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.”1

We are commencing with the aforesaid prefatory note as we are adverting to the constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).

2. At this juncture, it is necessary to state that though there is necessity of certainty of law, yet with the societal changes and more so, when the rights are expanded by the Court in respect of certain aspects having regard to the reflective perception of the organic and living Constitution, it is not apposite to have an inflexible stand on the foundation that the concept of certainty of law should be allowed to prevail and govern. The progression in law and the perceptual shift compels the present to have a penetrating look to the past.

3. When we say so, we may not be understood that precedents are not to be treated as such and that in the excuse of perceptual shift, the binding nature of precedent should not be allowed to retain its status or allowed to be diluted. When a constitutional court faces such a challenge, namely, to be detained by a precedent or to grow out of the same because of the normative changes that have occurred in the other arenas of law and the obtaining precedent does not cohesively fit into the same, the concept of cohesive adjustment has to be in accord with the growing legal interpretation and the analysis has to be different, more so, where the emerging concept recognises a particular right to be planted in the compartment of a fundamental right, such as Articles 14 and 21 of the Constitution. In such a backdrop, when the constitutionality of a provision is assailed, the Court is compelled to have a keen scrutiny of the provision in the context of developed and progressive interpretation. A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach. The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has responded and the rights that have been accentuated by the constitutional courts. To explicate, despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, the Court cannot conceive of women still being treated as a property of men, and secondly, where the delicate relationship between a husband and wife does not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third party culpable.

4. We may presently state the nature of the lis.

5. The instant writ petition has been filed under Article 32 of the Constitution of India challenging the validity of Section 497 IPC. A three-Judge Bench, on the first occasion, taking note of the authorities in Yusuf Abdul Aziz v. State of Bombay2, Sowmithri Vishnu v. Union of India and another3, V. Revathi v. Union of India and others4 and W. Kalyani v. State through Inspector of Police and another5 and appreciating the submissions advanced by the learned counsel for the petitioner, felt the necessity to have a re-look at the constitutionality of the provision. At that juncture, the Court noted that:-

“Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.”

That is how the matter has been placed before us.

6. At this stage, one aspect needs to be noted. At the time of initial hearing before the three-Judge Bench, the decision in Yusuf Abdul Aziz (supra) was cited and the cited Law Report reflected that the judgment was delivered by four learned Judges and later on, it was noticed, as is reflectible from the Supreme Court Reports, that the decision was rendered by a Constitution Bench comprising of five Judges of this Court.

7. The said factual discovery will not detain us any further. In Yusuf Abdul Aziz (supra), the Court was dealing with the controversy that had travelled to this Court while dealing with a different fact situation. In the said case, the question arose whether Section 497 contravened Articles 14 and 15 of the Constitution of India. In the said case, the appellant was being prosecuted for adultery under Section 497 IPC. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional question under Article 228 of the Constitution. The Constitution Bench referring to Section 497 held thus:-

“3. Under Section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor. The last sentence in Section 497 prohibits this. It runs—

“In such case the wife shall not be punishable as an abettor.” It is said that this offends Articles 14 and 15.

The portion of Article 15 on which the appellant relies is this:

“The State shall not discriminate against any citizen on grounds only of … sex.”

But what he overlooks is that that is subject to clause (3) which runs—

“Nothing in this article shall prevent the State from making any special provision for women ”

The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3).

4. It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited.

5. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.

6. The appellant is not a citizen of India. It was argued that he could not invoke Articles 14 and 15 for that reason. The High Court held otherwise. It is not necessary for us to decide this question in view of our decision on the other issue.”

On a reading of the aforesaid passages, it is manifest that the Court treated the provision to be a special provision made for women and, therefore, saved by clause (3) of Article 15. Thus, the Court proceeded on the foundation of affirmative action.

8. In this context, we may refer to the observation made by the Constitution Bench in Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another6 while making a reference to a larger Bench. The said order reads thus:-

“12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh7 and Hansoli Devi8.”

In the light of the aforesaid order, it was necessary to list the matter before a Constitution Bench consisting of five Judges. As noted earlier, considering the manner in which we intend to deal with the matter, it is not necessary to refer to a larger Bench.

9. Sections 497 and 498 of IPC read thus:-

“Section 497 : Adultery

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.

Section 498 : Enticing or taking away or detaining with criminal intent a married woman Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

10. Section 198 of CrPC provides for prosecution for offences against marriage. Section 198 is reproduced below:-

“198. Prosecution for offences against marriage.—(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that-

(a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860 ) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’ s or mother’ s brother or sister 2, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under 3 [eighteen years of age], if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.”

11. On a perusal of the aforesaid provision, it is clear that the husband of the woman has been treated to be a person aggrieved for the offences punishable under Sections 497 and 498 of the IPC. The rest of the proviso carves out an exception as to who is entitled to file a complaint when the husband is absent. It may be noted that the offence is non-cognizable.

12. The three-Judge Bench, while referring the matter, had briefly dwelled upon the impact of the provision. To appreciate the constitutional validity, first, we shall deal with the earlier pronouncements and the principles enunciated therein and how we can have a different perspective of such provisions. We have already referred to what has been stated in Yusuf Abdul Aziz (supra).

13. In Sowmithri Vishnu (supra), a petition preferred under Article 32 of the Constitution challenged the validity of Section 497 IPC. We do not intend to advert to the factual matrix. It was contended before the three-Judge Bench that 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; that Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and that Section 497 does not take in cases where the husband has sexual relations with an unmarried woman with the result that husbands have a free licence under the law to have extramarital relationships with unmarried women. That apart, the submission was advanced that Section 497 is a flagrant instance of ‘gender discrimination‘, ‘legislative despotism‘ and ‘male chauvinism‘. At first blush, it may 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.

14. The Court referred to the submissions and held thus:-

“…..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 no 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….”

Proceeding further, the three-Judge Bench held that the offence of adultery as defined in that Section can only be committed by a man, not by a woman. Indeed, the Section expressly provides 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, the same point is reverted to; 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.

15. The Court further held:-

“…..Since Section 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 said to be bad. 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.”

After so stating, the Court placed reliance on Yusuf Abdul Aziz (supra) and held that the same does not offend Articles 14 and 15 of the Constitution and opined that the stability of marriages is not an ideal to be scorned. Being of this view, the Court dismissed the petition.

16. In V. Revathi v. Union of India and others9, the Court analysed the design of the provision and ruled:-

“…..Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband…..”

It placed heavy reliance on the three-Judge Bench in Sowmithri Vishnu (supra) and proceeded to state that the community punishes the ‘outsider‘ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man‘ alone can be punished and not the erring woman. It further went on to say that it does not arm the two spouses to hit each other with the weapon of criminal law. That is why, neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished, a rider has been added that if the outsider is a woman, she is not punished. There is, thus, reverse discrimination in “favour” of the woman rather than “against” her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus, there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. In the ultimate analysis, the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus, no discrimination has been practised in circumscribing the scope of Section 198(2) CrPC and fashioning it in such a manner that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer. Expressing this view, the Court held that the provision is not vulnerable to the charge of hostile discrimination.

17. In W. Kalyani v. State Thro’ Inspector of Police and another10, the Court held:-

“10. The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.”

Be it noted, the issue of constitutional validity did not arise in the said case.

18. At this juncture, we think it seemly to state that we are only going to deal with the constitutional validity of Section 497 IPC and Section 198 CrPC. The learned counsel for the petitioner submits that the provision by its very nature is arbitrary and invites the frown of Article 14 of the Constitution. In Shayara Bano v. Union of India and others11, the majority speaking through Nariman, J., ruled thus :-

“60. Hard as we tried, it is difficult to discover any ratio in this judgment, as one part of the judgment contradicts another part. If one particular statutory enactment is already under challenge, there is no reason why other similar enactments which were also challenged should not have been disposed of by this Court. Quite apart from the above, it is a little difficult to appreciate such declination in the light of Prem Chand Garg (supra). This judgment, therefore, to the extent that it is contrary to at least two Constitution 346 Bench decisions cannot possibly be said to be good law.

61. It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India.

62. Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts- (1) equality before the law, and (2) the equal protection of the law. Judgments of this Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the “discrimination” aspect of Article 14, and evolved a rule by which subjects could be classified. If 347 the classification was “intelligible” having regard to the object sought to be achieved, it would pass muster under Article 14‘s anti- discrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab, (1963) 2 SCR 353 at 395, warned that:

“50……Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content.”

He referred to the doctrine of classification as a “subsidiary rule” evolved by courts to give practical content to the said Article.

63. In the pre-1974 era, the judgments of this Court did refer to the “rule of law” or

“positive” aspect of Article 14, the concomitant of which is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703, this Court held:

“In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, 348 discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey — “Law of the Constitution” — 10th Edn., Introduction cx). “Law has reached its finest moments”, stated Douglas, J. in United States v. Wunderlick [342 US 98],

“9…..when it has freed man from the unlimited discretion of some ruler…. Where discretion, is absolute, man has always suffered”. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes [(1770) 4 Burr. 2528 at 2539],

“…..means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful. “.”

This was in the context of service rules being seniority rules, which applied to the Income Tax Department, being held to be violative of Article 14 of the Constitution of India.”

19. Thereafter, our learned brother referred to the authorities in State of Mysore v. S.R. Jayaram12, Indira Nehru Gandhi v. Raj Narain13, E.P. Royappa v. State of Tamil Nadu14, Maneka Gandhi v. Union of India15, A.L. Kalra v. Project and Equipment Corporation of India Ltd.16, Ajay Hasia v. Khalid Mujib Sehravardi17, K.R. Lakshmanan v. State of T.N.18 and two other Constitution Bench judgments in Mithu v. State of Punjab19 and Sunil Batra v. Delhi Administration20 and, eventually, came to hold thus:-

“It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be “arbitrary”.”

And again:-

“…..The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

20. We respectfully concur with the said view.

21. In Yusuf Abdul Aziz (supra), the Court understood the protection of women as not discriminatory but as being an affirmative provision under clause (3) of Article 15 of the Constitution. We intend to take the path of expanded horizon as gender justice has been expanded by this Court.

22. We may now proceed to test the provision on the touchstone of the aforesaid principles. On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted.

23. As we notice, the provision treats a married woman as a property of the husband. It is interesting to note that Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow. The dictionary meaning of “adultery” is that a married person commits adultery if he has sex with a woman with whom he has not entered into wedlock. As per Black‘s Law Dictionary, ‘adultery‘ is the voluntary sexual intercourse of a married person with a person other than the offender‘s husband or wife. However, the provision has made it a restricted one as a consequence of which a man, in certain situations, becomes criminally liable for having committed adultery while, in other situations, he cannot be branded as a person who has committed adultery so as to invite the culpability of Section 497 IPC. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. We are constrained to think so, as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary.

24. Presently, we shall address the issue against the backdrop of Article 21 of the Constitution. For the said purpose, it is necessary to devote some space with regard to the dignity of women and the concept of gender equality.

25. In Arun Kumar Agrawal and another v. National Insurance Company Limited and others21, the issue related to the criteria for determination of compensation payable to the dependents of a woman who died in road accident. She did not have a regular income. Singhvi, J. rejected the stand relating to determination of compensation by comparing a house wife to that of a house keeper or a servant or an employee who works for a fixed period. The learned Judge thought it unjust, unfair and inappropriate. In that context, the learned Judge stated:-

“26. In India the courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer‘s work for particular hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.”

26. Ganguly, J., in his concurring opinion, referred to the Australian Family Property Law and opined that the said law had adopted a very gender sensitive approach. The learned Judge reproduced:-

“the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent.”

27. In State of Madhya Pradesh v. Madanlal22, the Court held:-

“Dignity of a woman is a part of her non- perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.”

28. In Pawan Kumar v. State of Himachal Pradesh23, the Court, dealing with the concept of equality and dignity of a woman, observed:-

“47 …in a civilized society eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution. That apart it creates an incurable dent in the right of a woman which she has under Article 15 of the Constitution. One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject.

48. In a civilized society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescendation. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civility. Egoism must succumb to law. Equality has to be regarded as the summum bonum of the constitutional principle in this context.”

29. Lord Keith in R v. R24 declared:-

“marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.”

30. Lord Denning25 states:-

“A wife is no longer her husband‘s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern.”

31. In Shamima Farooqui v. Shahid Khan26, the Court ruled:-

“Chivalry, a perverse sense of human egotism, and clutching of feudal megalomaniac ideas or for that matter, any kind of condescending attitude have no room. They are bound to be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority.”

And again:-

“Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger – an outsider. That is the truth in essentiality.”

32. In Voluntary Health Association of Punjab v. Union of India27, one of us (Dipak Misra, J.), in his concurring opinion, stated that women have to be regarded as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, that is, in thinking, participating and leadership. The issue related to female foeticide and it was stated thus:-

“21. When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it. Henrik Ibsen emphasised on the individualism of woman. John Milton treated her to be the best of all God‘s work. In this context, it will be appropriate to quote a few lines from Democracy in America by Alexis de Tocqueville:

“If I were asked … to what the singular prosperity and growing strength of that people [Americans] ought mainly to be attributed, I should reply: To the superiority of their women.”

22. At this stage, I may with profit reproduce two paragraphs from Ajit Savant

Majagvai v. State of Karnataka28: (SCC pp. 113-14, paras 3 & 4)

“3. Social thinkers, philosophers, dramatists, poets and writers have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked ‘I am glad that I am not a man; for then I should have to marry a woman‘, there was wit in it. When Shakespeare wrote, ‘Age cannot wither her; nor custom stale, her infinite variety‘, there again was wit. Notwithstanding that these writers have cried hoarse for respect for ‘woman‘, notwithstanding that Schiller said ‘Honour women! They entwine and weave heavenly roses in our earthly life‘ and notwithstanding that the Mahabharata mentioned her as the source of salvation, crime against ‘woman‘ continues to rise and has, today undoubtedly, risen to alarming proportions.

4. It is unfortunate that in an age where people are described as civilised, crime against ‘female’ is committed even when the child is in the womb as the ‘female’ foetus is often destroyed to prevent the birth of a female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.”

[Emphasis supplied]

And again:-

“23. In Madhu Kishwar v. State of Bihar29 this Court had stated that Indian women have suffered and are suffering discrimination in silence.

“28. … Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination.” (SCC p. 148, para 28)

24. The way women had suffered has been aptly reflected by an author who has spoken with quite a speck of sensibility:

“Dowry is an intractable disease for women, a bed of arrows for annihilating self-respect, but without the boon of wishful death.”

25. Long back, Charles Fourier had stated:

“The extension of women‘s rights is the basic principle of all social progress.”

26. Recapitulating from the past, I may refer to certain sayings in the Smritis which put women in an elevated position. This Court

in Nikku Ram case4 had already reproduced the first line of the shloka. The second line of the same which is also significant is as follows:

Yatra tastu na pujyante sarvastatraphalah kriyah

A free translation of the aforesaid is reproduced below:

“All the actions become unproductive in a place, where they are not treated with proper respect and dignity.”

27. Another wise man of the past had his own way of putting it:

Bhartr bhratr pitrijnati swasruswasuradevaraih Bandhubhisca striyah pujyah bhusnachhadanasnaih

A free translation of the aforesaid is as follows:

“The women are to be respected equally on a par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour.”

28. Yet again, the sagacity got reflected in following lines:

Atulam yatra tattejah sarvadevasarirajam Ekastham tadabhunnari vyaptalokatrayam tvisa

A free translation of the aforesaid is reproduced below:

“The incomparable valour (effulgence) born from the physical frames of all the gods, spreading the three worlds by its radiance and combining together took the form of a woman.”

29. From the past, I travel to the present and respectfully notice what Lord Denning had to say about the equality of women and their role in the society:

“A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom — to develop her personality to the full as a man. When she marries, she does not become the husband‘s servant but his equal partner. If his work is more important in life of the community, her‘s is more important of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.”

33. In Charu Khurana and others v. Union of India and others30, speaking about the dignity of women, the Court held:-

“33. … Be it stated, dignity is the quintessential quality of a personality and a human frame always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to all citizens and see that they are not deprived of by reasons of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.”

34. In Shakti Vahini v. Union of India and others31, the lis was in a different context. The Court reproduced a passage from Joseph J. Ellis which is also relevant for the present purpose. It reads:-

“We don‘t live in a world in which there exists a single definition of honour anymore, and it‘s a fool that hangs onto the traditional standards and hopes that the world will come around him.”

35. In the said case, a contention was advanced that the existence of a woman is entirely dependent on the male view of the reputation of the family, the community and the milieu. The Court, in that context, observed:-

“5. …The collective behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate, even servile or self-sacrificing, persons moving in physical frame having no individual autonomy, desire and identity. The concept of status is accentuated by the male members of the community and a sense of masculine dominance becomes the sole governing factor of perceptive honour.”

36. We have referred to the aforesaid as we are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband‘s monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance.

37. Having stated about the dignity of a woman, in the context of autonomy, desire, choice and identity, it is obligatory to refer to the recent larger Bench decision in K.S. Puttaswamy and another v. Union of India and others32 which, while laying down that privacy is a facet of Article 21 of the Constitution, lays immense stress on the dignity of an individual. In the said judgment, it has been held:-

“108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).

xxx xxxx xxx

119. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence ”

xxx xxx xxx

“298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self- determination.”

xxx xxx xxx

“525. But most important of all is the cardinal value of fraternity which assures the dignity of the individual.359 The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorized use of such information. It is clear that Article 21, more than any of the other Articles in the fundamental rights chapter, reflects each of these constitutional values in full, and is to be read in consonance with these values and with the international covenants that we have referred to. In the ultimate analysis, the fundamental right of privacy, which has so many developing facets, can only be developed on a case to case basis. Depending upon the particular facet that is relied upon, either Article 21 by itself or in conjunction with other fundamental rights would get attracted.”

38. In this context, we may profitably refer to National Legal Services Authority v. Union of India and others33 wherein A.K. Sikri, J., in his concurring opinion, emphasizing on the concept of dignity, has opined:-

“The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral his/her personality and is one of the most basic aspect of self-determination dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.”

39. Very recently, in Common Cause (A Registered Society) v. Union of India and another34, one of us has stated:-

“… Human dignity is beyond definition. It may at times defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism. But what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling, and, as stated earlier, it deserves respect even when the person is dead and described as a “body”. ”

And again:-

“The concept and value of dignity requires further elaboration since we are treating it as an inextricable facet of right to life that respects all human rights that a person enjoys. Life is basically self-assertion. In the life of a person, conflict and dilemma are expected to be normal phenomena. Oliver Wendell Holmes, in one of his addresses, quoted a line from a Latin poet who had uttered the message, “Death plucks my ear and says, Live- I am coming” . That is the significance of living. But when a patient really does not know if he/she is living till death visits him/her and there is constant suffering without any hope of living, should one be allowed to wait? Should she/he be cursed to die as life gradually ebbs out from her/his being? Should she/he live because of innovative medical technology or, for that matter, should he/she continue to live with the support system as people around him/her think that science in its progressive invention may bring about an innovative method of cure? To put it differently, should he/she be “guinea pig for some kind of experiment? The answer has to be an emphatic “Not because such futile waiting mars the pristine concept of life, corrodes 139 the essence of dignity and erodes the fact of eventual choice which is pivotal to privacy.”

In Mehmood Nayyar Azam v. State of Chhattisgarh and others, a two-Judge Bench held thus:-

“1…… Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, “the reverence of life offers me my fundamental principle on morality”. The aforesaid expression may appear to be an individualistic expression of a great personality, but, when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands. The reverence of life is insegragably associated with the dignity of a human being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, ‘a brief candle’, or ‘a hollow bubble’. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of “creative intelligence”

40. In the said judgment, A.K. Sikri, J. reproduced a passage from Professor Upendra Baxi‘s lecture in First Justice H.R. Khanna Memorial Lecture which reads as follows:-

“I still need to say that the idea of dignity is a metaethical one, that is it marks and maps a difficult terrain of what it may mean to say being ‘human’ and remaining ‘human’, or put another way the relationship between ‘self’, ‘others’, and ‘society’. In this formulation the word ‘respect’ is the keyword: dignity is respect for an individual person based on the principle of freedom and capacity to make choices and a good or just social order is one which respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’. Respect for dignity thus conceived is empowering overall and not just because it, even if importantly, sets constraints state, law, and regulations.”

41. From the aforesaid analysis, it is discernible that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution.

42. Another aspect needs to be addressed. The question we intend to pose is whether adultery should be treated as a criminal offence. Even assuming that the new definition of adultery encapsules within its scope sexual intercourse with an unmarried woman or a widow, adultery is basically associated with the institution of marriage. There is no denial of the fact that marriage is treated as a social institution and regard being had to various aspects that social history has witnessed in this country, the Parliament has always made efforts to maintain the rights of women. For instance, Section 498-A IPC deals with husband or relative of husband of a woman subjecting her to cruelty. The Parliament has also brought in the Protection of Women from Domestic Violence Act, 2005. This enactment protects women. It also enters into the matrimonial sphere. The offences under the provisions of the said enactment are different from the provision that has been conceived of under Section 497 IPC or, for that matter, concerning bringing of adultery within the net of a criminal offence. There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage. But the pivotal question is whether it should be treated as a criminal offence. When we say so, it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. It is an ideal condition when the wife and husband maintain their loyalty. We are not commenting on any kind of ideal situation but, in fact, focusing on whether the act of adultery should be treated as a criminal offence.

In this context, we are reminded of what Edmund Burke, a famous thinker, had said, “a good legislation should be fit and equitable so that it can have a right to command obedience”. Burke would like to put it in two compartments, namely, ‘equity‘ and ‘utility‘. If the principle of Burke is properly understood, it conveys that laws and legislations are necessary to serve and promote a good life.

43. Dealing with the concept of crime, it has been stated in “Principles of Criminal Liability”35 thus :-

“1. Definition of crime.—There is no satisfactory definition of crime which will embrace the many acts and omissions which are criminal, and which will at the same time exclude all those acts and omissions which are not. Ordinarily a crime is a wrong which affects the security or well- being of the public generally so that the public has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to conduct which is inimical to the general moral sense of the community. It is, however, possible to instance many crimes which exhibit neither of the foregoing characteristics. An act may be made criminal by Parliament simply because it is criminal process, rather than civil, which offers the more effective means of controlling the conduct in question.”

44. In Kenny’s Outlines of Criminal Law, 19th Edn., 1966 by

J.W. Cecil Turner, it has been stated that:-

“There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore although it is true to say of crime that is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification.”

And again:-

“So long as crimes continue (as would seem inevitable) to be created by government policy the nature of crime will elude true definition. Nevertheless it is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.”

45. Stephen defines a “crime” thus:-

“A crime is an unlawful act or default which is an offence against the public, rendering the person guilty of such act or default liable to legal punishment. The process by which such person is punished for the unlawful act or default is carried on in the name of the Crown; although any private person, in the absence of statutory provision to the contrary, may commence a criminal prosecution. Criminal proceedings were formerly called pleas of the Crown, because the King, in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community. Wherefore he is, in all cases, the proper prosecutor for every public offence.”

46. Blackstone, while discussing the general nature of crime, has defined crime thus:-

“A crime, or misdemeanour, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours; which, properly speaking, are mere synonym terms: though, in common usage, the word “crimes” is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of “misdemeanours” only.”

47. In this regard, we may reproduce a couple of paragraphs from Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly36. They read as under:-

“25. The story of mankind is punctuated by progress and retrogression. Empires have risen and crashed into the dust of history. Civilizations have nourished, reached their peak and passed away. In the year 1625, Carew, C.J., while delivering the opinion of the House of Lords in Re the Earldom of Oxford in a dispute relating to the descent of that Earldom, said:

“… and yet time hath his revolution, there must be a period and an end of all temporal things, finis rerum, an end of names and dignities, and whatsoever is terrene ”

The cycle of change and experiment, rise and fall, growth and decay, and of progress and retrogression recurs endlessly in the history of man and the history of civilization. T.S. Eliot in the First Chorus from “The Rock” said:

O perpetual revolution of configured stars,
O perpetual recurrence of determined seasons,
O world of spring and autumn, birth and dying;
The endless cycle of idea and action,
Endless invention, endless experiment.”

26. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said: “When I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool.” The law must, therefore, in a changing society march in tune with the changed ideas and ideologies.”

48. Reproducing the same, the Court in Common Cause (A Registered Society) (supra), has observed :-

“160. The purpose of saying so is only to highlight that the law must take cognizance of the changing society and march in consonance with the developing concepts. The need of the present has to be served with the interpretative process of law. However, it is to be seen how much strength and sanction can be drawn from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally falls outside the constitutional framework or the constitutional interpretation fails to recognize such dynamism.”

49. We have referred to the aforesaid theories and authorities to understand whether adultery that enters into the matrimonial realm should be treated as a criminal offence. There can be many a situation and we do not intend to get into the same. Suffice it to say, it is different from an offence committed under Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently, the provision is reflective of a tripartite labyrinth. A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife. In either situation, the whole scenario is extremely private. It stands in contradistinction to the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences. We are absolutely conscious that the Parliament has the law making power. We make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime. We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce. For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. Let it be clearly stated, by no stretch of imagination, one can say, that Section 498-A or any other provision, as mentioned hereinbefore, also enters into the private realm of matrimonial relationship. In case of the said offences, there is no third party involved. It is the husband and his relatives. There has been correct imposition by law not to demand dowry or to treat women with cruelty so as to compel her to commit suicide. The said activities deserve to be punished and the law has rightly provided so.

50. In this regard, we may also note how the extramarital relationship cannot be treated as an act for commission of an offence under Section 306 IPC. In Pinakin Mahipatray Rawal v. State of Gujarat37, the Court has held :-

“27. Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra- marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.”
[Emphasis added]

51. In the context of Section 498-A, the Court, in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat38, has opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty, the Explanation (a) to Section 498-A IPC, which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is extracted below :-

“21. …True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal, but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498- A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted.”
[Emphasis added]

52. The purpose of referring to the aforesaid authorities is to highlight how adultery has not been granted separate exclusive space in the context of Sections 306 and 498-A IPC.

53. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite.

54. We may also usefully note here that adultery as a crime is no more prevalent in People‘s Republic of China, Japan, Australia, Brazil and many western European countries. The diversity of culture in those countries can be judicially taken note of. Non-criminalisation of adultery, apart from what we have stated hereinabove, can be proved from certain other facets. When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. The issue that requires to be determined is whether the said ‘act‘ should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness.

55. In this regard, another aspect deserves to be noted. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We have already ascribed when such an act is treated as a crime and how it faces the frown of Articles 14 and 21 of the Constitution. Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law.

56. As we have held that Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path.

57. In view of the foregoing analysis, the decisions in Sowmithri Vishnu (supra) and V. Revathi (supra) stand overruled and any other judgment following precedents also stands overruled.

58. Consequently, the writ petition is allowed to the extent indicated hereinbefore.

.………………………….CJI.
(Dipak Misra)

.…………………………….J.
(A.M. Khanwilkar)

New Delhi; September 27, 2018

FOOTNOTE

1 On the Subjection of Women, Chapter 1 (John Stuart Mill, 1869)
2 1954 SCR 930 : AIR 1954 SC 321
3 (1985)Supp SCC 137 : AIR 1985 SC 1618
4 (1988)2 SCC 72
5 (2012) 1 SCC 358
6 (2005) 2 SCC 673
7 Union of India and Anr. v. Raghubir Singh (dead) by Lrs. etc., (1989) 2 SCC 754
8 Union of India & Anr. v. Hansoli Devi & Ors., (2002) 7 SCC 273
9 (1988) 2 SCC 72
10 (2012) 1 SCC 358
11 (2017) 9 SCC 1
12 (1968) 1 SCR 349
13 (1975) Supp SCC 1
14 (1974) 4 SCC 3
15 (1978) 1 SCC 248
16 (1984) 3 SCC 316
17 (1981) 1 SCC 722
18 (1996) 2 SCC 226
19 (1983) 2 SCC 277
20 (1978) 4 SCC 494
21 (2010) 9 SCC 218
22 (2015) 7 SCC 681
23 (2017) 7 SCC 780
24 [1991] 4 All ER 481 at p. 484
25 The Due Process of Law (London, Butterworths, 1980, at page 212)
26 (2015) 5 SCC 705
27 (2013) 4 SCC 1
28 (1997) 7 SCC 110
29 (1996) 5 SCC 125
30 (2015) 1 SCC 192
31 (2018) 7 SCC 192
32 (2017) 10 SCC 1
33 (2014) 5 SCC 438
34 (2018) 5 SCC 1
35 Halsbury’s Laws of England, 4th Edn., Vol. 11 p.11,
36 (1986) 3 SCC 156
37 (2013) 10 SCC 48
38 (2015) 11 SCC 753

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 194 OF 2017

JOSEPH SHINE … PETITIONER
VERSUS
UNION OF INDIA … RESPONDENT

J U D G M E N T

R.F. Nariman, J. (Concurring)

1. What is before us in this writ petition is the constitutional validity of an archaic provision of the Indian Penal Code (“IPC”), namely, Section 497, which makes adultery a crime. Section 497 appears in Chapter XX of the IPC, which deals with offences relating to marriage. Section 497 reads as follows:-

“497. Adultery.—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 offence of bigamy, which is contained in Section 494 in the same Chapter, is punishable with a longer jail term which may extend to 7 years, but in this case, the husband or the wife, as the case may be, is liable to be prosecuted and convicted. Section 494 reads as follows:

“494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”

It will be noticed that the crime of adultery punishes only a third- party male offender as against the crime of bigamy, which punishes the bigamist, be it a man or a woman. What is therefore punished as ‘adultery‘ is not ‘adultery‘ per se but the proprietary interest of a married man in his wife.

Almost all ancient religions/civilizations punished the sin of adultery. In one of the oldest, namely, in Hammurabi‘s Code, death by drowning was prescribed for the sin of adultery, be it either by the husband or the wife. In Roman law, it was not a crime against the wife for a husband to have sex with a slave or an unmarried woman. The Roman lex Iulia de adulteriis coercendis of 17 B.C., properly so named after Emperor Augustus‘ daughter, Julia, punished Julia for adultery with banishment. Consequently, in the case of adulterers generally, both guilty parties were sent to be punished on different islands, and part of their property was confiscated.

2. In Judaism, which again is an ancient religion, the Ten Commandments delivered by the Lord to Moses on Mount Sinai contains the Seventh Commandment – “Thou shalt not commit adultery” – set out in the book of Exodus in the Old Testament.1 Equally, since the wages of sin is death, the book of Leviticus in the Old Testament prescribes the death penalty for the adulterer as well as the adulteress.2

3. In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St. Paul‘s letter to the Corinthians.3 Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent.4 However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words, “let him who has not sinned, cast the first stone.”5

4. In this country as well, in the Manusmriti, Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment. The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and the woman.8 However, in the Gautama Dharmasutra, if a man commits adultery, he should observe a life of chastity for two years; and if he does so with the wife of a vedic scholar, for three years.9

5. In Islam, in An-Nur, namely, Chapter 24 of the Qur‘an, Verses 2 and 6 to 9 read as follows:

“2. The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement.”10

xxx xxx xxx

“6. And those who accuse their wives and have no witnesses except themselves, let one of them testify four times, bearing Allah to witness, that he is of those who speak the truth.

7. And the fifth (time) that the curse of Allah be on him, if he is of those who lie.

8. And it shall avert the chastisement from her, if she testify four times, bearing Allah to witness, that he is of those who lie.

9. And the fifth (time) that the wrath of Allah to be on her, if he is of those who speak the truth.”11

What is interesting to note is that if there are no witnesses other than the husband or the wife, and the husband testifies four times that his wife has committed adultery, which is met by the wife testifying four times that she has not, then earthly punishment is averted. The wrath of Allah alone will be on the head of he or she who has given false testimony – which wrath will be felt only in life after death in the next world.

6. In sixth-century Anglo-Saxon England, the law created “elaborate tables of composition” which the offended husband could accept in lieu of blood vengeance. These tables were schemes for payment of compensation depending upon the degree of harm caused to the cuckolded husband. However, as Christianity spread in England, adultery became morally wrong and therefore, a sin, as well as a wrong against the husband. Post 1066, the Normans who took over, viewed adultery not as a crime against the State, but rather as an ecclesiastical offence dealt with by the Church. The common law of England prescribed an action in tort for loss of consortium based on the property interest a husband had in his wife. Thus, the action for conversation, which is compensation or damages, usually represented a first step in obtaining divorce in medieval England. In fact, adultery was the only ground for divorce in seventeenth-century England, which had to be granted only by Parliament. Interestingly enough, it was only after King Charles I was beheaded in 1649, that adultery became a capital offence in Cromwell‘s Puritanical England in the year 1650, which was nullified as soon as King Charles II came back in what was known as the ‘restoration of the monarchy‘. It will be seen therefore, that in England, except for an eleven-year period when England was ruled by the Puritans, adultery was never considered to be a criminal offence. Adultery was only a tort for which damages were payable to the husband, given his proprietary interest in his wife.12 This tort is adverted to by a 1904 judgment of the Supreme Court of the United States in Charles A. Tinker v. Frederick L. Colwell, 193 US 473 (1904), as follows:

“…… We think the authorities show the husband had certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her; that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act, because the wife is in law incapable of giving any consent to affect the husband‘s rights as against the wrongdoer, and that an assault of this nature may properly be described as an injury to the personal rights and property of the husband, which is both malicious and willful……

The assault vi et armis is a fiction of law, assumed at first, in early times, to give jurisdiction of the cause of action as a trespass, to the courts, which then proceeded to permit the recovery of damages by the husband for his wounded feelings and honour, the defilement of the marriage bed, and for the doubt thrown upon the legitimacy of children.”13

“We think that it is made clear by these references to a few of the many cases on this subject that the cause of action by the husband is based upon the idea that the act of the defendant is a violation of the marital rights of the husband in the person of his wife, and so the act of the defendant is an injury to the person and also to the property rights of the husband.”14

To similar effect is the judgment in Pritchard v. Pritchard and Sims, [1966] 3 All E.R. 601, which reconfirmed the origins of adultery or criminal conversation as under:

“In 1857, when marriage in England was still a union for life which could be broken only by private Act of Parliament, there existed side by side under the common law three distinct causes of action available to a husband whose rights in his wife were violated by a third party, who enticed her away, or who harboured her or who committed adultery with her. …… In the action for adultery known as criminal conversation, which dates from before the time of BRACTON, and consequently lay originally in trespass, the act of adultery itself was the cause of action and the damages punitive at large. It lay whether the adultery resulted in the husband‘s losing his wife‘s society and services or not. All three causes of action were based on the recognition accorded by the common law to the husband‘s propriety interest in the person of his wife, her services and earnings, and in the property which would have been hers had she been feme sole.”15

7. In England, Section LIX of the Divorce and Matrimonial Causes Act, 1857 abolished the common law action for criminal conversation while retaining, by Section XXXIII of the same Act, the power to award the husband damages for adultery committed by the wife. This position continued right till 1923, when the Matrimonial Causes Act, 1923 made adultery a ground for divorce available to both spouses instead of only the husband. The right of a husband to claim damages for adultery was abolished very recently by the Law Reforms (Miscellaneous Provisions) Act, 1970.16

8. In the United States, however, Puritans who went to make a living in the American colonies, carried with them Cromwell‘s criminal law, thereby making adultery a capital offence. Strangely enough, this still continues in some of the States in the United States. The American Law Institute, however, has dropped the crime of adultery from its Model Penal Code as adultery statutes are in general vague, archaic, and sexist. None of the old reasons in support of such statutes, namely, the controlling of disease, the preventing of illegitimacy, and preserving the traditional family continue to exist as of today. It was also found that criminal adultery statutes were rarely enforced in the United States and were, therefore, referred to as “dead letter statutes”. This, plus the potential abuses from such statutes continuing on the statute book, such as extortion, blackmail, coercion etc. were stated to be reasons for removing adultery as a crime in the Model Penal Code.17

9. When we come to India, Lord Macaulay, in his draft Penal Code, which was submitted to the Law Commissioners, refused to make adultery a penal offence. He reasoned as follows:

“The following positions we consider as fully established: first, that the existing laws for the punishment of adultery are altogether inefficacious for the purpose of preventing injured husbands of the higher classes from taking the law into their own hands; secondly, that scarcely any native of the higher classes ever has recourse to the Courts of law in a case of adultery for redress against either his wife, or her gallant; thirdly, that the husbands who have recourse in cases of adultery to the Courts of law are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider their wives as useful members of their small household, that they generally complain not of the wound given to their affections, not of the stain on their honor, but of the loss of a menial whom they cannot easily replace, and that generally their principal object is that the woman may be sent back. The fiction by which seduction is made the subject of an action in the English Courts is, it seems, the real gist of most proceedings for adultery in the Mofussil. The essence of the injury is considered by the sufferer as lying in the “per quod servitium amisit.” Where the complainant does not ask to have his wife again, he generally demands to be reimbursed for the expenses of his marriage.

These things being established it seems to us that no advantage is to be expected from providing a punishment for adultery. The population seems to be divided into two classes- those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honor are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances we think it best to treat adultery merely as a civil injury.”

xxx xxx xxx

“These arguments have not satisfied us that adultery ought to be made punishable by law. We cannot admit that a Penal code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross in gratitude and insolence, deserves more severe reprehension than the man who aims a blow in a passion, or breaks a window in a frolic. Yet we have punishments for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice. Yet we punish the latter for theft, and we do not punish the former for hard-heartedness.”

xxx xxx xxx

“There is yet another consideration which we cannot wholly leave out of sight. Though we well know that the dearest interests of the human race are closely connected with the chastity of women, and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still children. They are often neglected for other wives while still young. They share the attentions of a husband with several rivals. To make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain operation of education and of time. But while it exists, while it continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law. We have given the reasons which lead us to believe that any enactment on this subject would be nugatory. And we are inclined to think that if not nugatory it would be oppressive. It would strengthen hands already too strong. It would weaken a class already too weak. It will be time enough to guard the matrimonial contract by penal sanctions when that contract becomes just, reasonable, and mutually beneficial.”18

10. However, when the Court Commissioners reviewed the Penal Code, they felt that it was important that adultery be made an offence. The reasons for so doing are set out as follows:

“353. Having given mature consideration to the subject, we have, after some hesitation, come to the conclusion that it is not advisable to exclude this offence from the Code. We think the reasons for continuing to treat it as a subject for the cognizance of the criminal courts preponderate. We conceive that Colonel Sleeman is probably right in regarding the difficulty of proving the offence according to the requirement of the Mohammedan law of evidence, which demands an amount of positive proof that is scarcely ever to be had in such a case, as having some effect in deterring the Natives from prosecuting adulterers in our courts, although the Regulations allow of a conviction upon strong presumption arising from circumstantial evidence. This difficulty, if it has had the effect supposed, will be removed, should the Code be adopted. Colonel Sleeman‘s representation of the actual consequences of the present system, which, while it recognizes the offence, renders it, in the opinion of the Natives, almost impossible to bring an offender to justice, it will be observed, coincides with and confirms practically Mr. Livingstone‘s view of the result to be expected when the law refuses to punish this offence. The injured party will do it for himself; great crimes, assassinations, poisonings, will be the consequence. The law here does not refuse, but it fails to punish the offence, says Colonel Sleeman, and poisonings are the consequence.

354. Colonel Sleeman thinks that the Commissioners have wrongly assumed that it is the lenity of the existing law that it is complained of by the Natives, and believes that they would be satisfied with a less punishment for the offence than the present law allows; viz. imprisonment for seven years, if it were certain to follow the offender. He proposes that the punishment of a man “convicted of seducing the wife of another” shall be imprisonment which may extend to seven years, or a fine payable to the husband or both imprisonment and fine. The punishment of a married woman “convicted of adultery” he would limit to imprisonment for two years. We are not aware whether or not he intends the difference in the terms used to be significant of a difference in the nature of the proof against the man and the woman respectively.

355. While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in Note Q, regarding the condition of a women of this country, in deference to it we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trial together, and empower the Court, in the event of their conviction, to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine. By Mr. Livingstone‘s Code, the woman forfeits her “matrimonial gains”, but is not liable to other punishment.

356. We would adopt Colonel Sleeman‘s suggestion as to the punishment of the male offender, limiting it to imprisonment not exceeding five years, instead of seven years allowed at present, and sanctioning the imposition of a fine payable to the husband as an alternative, or in addition.

357. The punishment prescribed by the Code of Louisiana is imprisonment not more than six months, or fine not exceeding 2,000 dollars, or both. By the French Code, the maximum term of imprisonment is two years, with fine in addition, which may amount to 2,000 francs.

358. If the offence of adultery is admitted into the Penal Code, there should be a provision in the Code of Procedure to restrict the right of prosecuting to the injured husband, agreeably to Section 2, Act II of 1845.”19

(emphasis supplied)

These are some of the reasons that led to the enactment of Section 497, IPC.

11. At this stage, it is important to note that by Section 199 of the Code of Criminal Procedure, 1898, it was only the husband who was to be deemed to be aggrieved by an offence punishable under Section 497, IPC. Thus, Section 199 stated:

“199. Prosecution for adultery or enticing a married woman.— No Court shall take cognizance of an offence under section 497 or section 498 of the Indian Penal Code (XLV of 1860), except upon a complaint made by the husband of the woman, or, in his absence, by some person who had care of such woman on his behalf at the time when such offence was committed.”

12. Even when this Code was replaced by the Code of Criminal Procedure (“CrPC”), 1973, Section 198 of the CrPC, 1973 continued the same provision with a proviso that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf. The said Section reads as follows:

“198. Prosecution for offences against marriage.— (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father‘s or mother‘s brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.”

At this stage, it is important to advert to some of the judgments of the High Courts and our Court. In Yusuf Abdul Aziz v. State, 1952 ILR Bom 449, a Division Bench of the Bombay High Court, consisting of M.C. Chagla, C.J. and P.B. Gajendragadkar, J. held that Section 497 of the IPC did not contravene Articles 14 and 15 of the Constitution. However, in an instructive passage, the learned Chief Justice stated:

“…… Mr. Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that this offence is only cognizable with the consent of the husband emphasises that point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are past, we hope, when women were looked upon as property by their husbands. But that is an argument more in favour of doing away with Section 497 altogether.”20

An appeal to this Court in Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930, (“Yusuf Abdul Aziz”), met with the same result.

This Court, through Vivian Bose, J., held that the last part of Section 497, which states that the wife shall not be punishable as an abettor of the offence of adultery, does not offend Articles 14 and 15 in view of the saving provision contained in Article 15(3), being a special provision made in favour of women.

This is an instance of Homer nodding. Apart from a limited ratio based upon a limited argument, the judgment applies a constitutional provision which is obviously inapplicable as Article 15(3), which states that, “nothing in this article shall prevent the State from making a special provision for women”, would refer to the “State” as either Parliament or the State Legislatures or the Executive Government of the Centre or the States, set up under the Constitution after it has come into force. Section 497 is, in constitutional language, an “existing law” which continues, by virtue of Article 372(1), to apply, and could not, therefore, be said to be a law made by the “State”, meaning any of the entities referred to above.

13. We have noticed a judgment of the Division Bench of the Bombay High Court in Dattatraya Motiram More v. State of Bombay, AIR 1953 Bom 311, in which the Division Bench turned down a submission that Article 15(3) is confined to laws made after the Constitution of India comes into force and would also apply to existing law thus:

“8. An argument was advanced by Mr. Patel that Art. 15(3) only applies to future legislation and that as far as all laws in force before the commencement of the Constitution were concerned, those laws can only be tested by Art. 15(1) and not by Art. 15(1) read with Art. 15(3). Mr. Patel contends that Art. 15(3) permits the State in future to make a special provision for women and children, but to the extent the laws in force are concerned Art. 15(1) applies, and if the laws in force are inconsistent with Art. 15(1), those laws must be held to be void. Turning to Art. 13(1), it provides:

“All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”

Therefore, before a law in force can be declared to be void it must be found to be inconsistent with one of the provisions of Part III which deals with Fundamental Rights, and the fundamental right which is secured to the citizen under Art. 15 is not the unlimited right under Art. 15(1) but the right under Art. 15(1) qualified by Art. 15(3). It is impossible to argue that the Constitution did not permit laws to have special provision for women if the laws were passed before the Constitution came into force, but permitted the Legislature to pass laws in favour of women after the Constitution was enacted. If a law discriminating in favour of women is opposed to the fundamental rights of citizens, there is no reason why such law should continue to remain on the statute book. The whole scheme of Art. 13 is to make laws, which are inconsistent with Part III, void, not only if they were in force before the commencement of the Constitution, but also if they were enacted after the Constitution came into force. Mr. Patel relies on the various provisos to Art. 19 and he says that in all those provisos special mention is made to existing laws and also to the State making laws in future. Now, the scheme of Art. 19 is different from the scheme of Art. 15. Provisos to Art. 19 in terms deal with law whether existing or to be made in future by the State, whereas Art. 15(3) does not merely deal with laws but deals generally with any special provision for women and children, and therefore it was not necessary in Art. 15(3) to mention both existing laws and laws to be made in future. But the exception made to Art. 15(1) by Art. 15(3) is an exception which applies both to existing laws and to laws which the State may make in future.”

14. We are of the view that this paragraph does not represent the law correctly. In fact, Article 19(2)-(6) clearly refers to
“existing law” as being separate from “the State making any law”, indicating that the State making any law would be laws made after the Constitution comes into force as opposed to “existing law”, which are pre-constitutional laws enacted before the Constitution came into force, as is clear from the definition of “existing law” contained in Article 366(10), which reads as under:

“366. Definitions.—In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

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(10) “existing law” means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation;”

15. Article 15(3) refers to the State making laws which therefore, obviously cannot include existing law. Article 15(3) is in this respect similar to Article 16(4), which reads as follows:

“16. Equality of opportunity in matters of public employment.—

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(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

The vital difference in language between Articles 15(3) and 16(4) on the one hand, and Article 19(2)-(6) on the other, must thus be given effect.

16. Coming back to Yusuf Abdul Aziz (supra), the difference in language between Article 15(3) and Article 19(2)-(6) was not noticed. The limited ratio of this judgment merely refers to the last sentence in Section 497 which it upholds. Its ratio does not extend to upholding the entirety of the provision or referring to any of the arguments made before us for striking down the provision as a whole.

17. We then come to Sowmithri Vishnu v. Union of India and Anr., (1985) Supp SCC 137, (“Sowmithri Vishnu”). In this case, an Article 32 petition challenged the constitutional validity of Section 497 of the Penal Code on three grounds which are
set out in paragraph 6 of the judgment. Significantly, the learned counsel in that case argued that Section 497 is a flagrant instance of ‘gender discrimination‘, ‘legislative despotism‘, and ‘male chauvinism‘. This Court repelled these arguments stating that they had a strong emotive appeal but no valid legal basis to rest upon. The first argument, namely, an argument of discrimination was repelled by stating that the ambit of the offence of adultery should make the woman punishable as well. This was repelled by saying that such arguments go to the policy of the law and not its constitutionality. This was on the basis that it is commonly accepted that it is the man who is the seducer and not the woman. Even in 1985, the Court accepted that this archaic position may have undergone some change over the years, but it is for the legislature to consider whether Section 497 be amended appropriately so as to take note of the transformation that society has undergone.

The Court then referred to the 42nd Law Commission Report, 1971, which recommended the retention of Section 497, 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 dissenting note of Mrs. Anna Chandi was also taken note of, where the dissenter stated that this 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 women‘s status in marriage.

The second ground was repelled stating that a woman is the victim of the crime, and as the offence of adultery is considered as an offence against the sanctity of the matrimonial home, only those men who defile that sanctity are brought within the net of the law. Therefore, it is of no moment that Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.

The third ground, namely, that Section 497 is underinclusive inasmuch as a husband who has sexual relations with an unmarried woman is not within the net of the law, was repelled stating that an unfaithful husband may invite a civil action by the wife for separation, and that the Legislature is entitled to deal with the evil where it is felt and seen most.

A challenge on the ground of Article 21 was also repelled, stating that the fact that a provision for hearing the wife is not contained in Section 497 cannot render that Section unconstitutional. This Court then referred to the judgment in Yusuf Abdul Aziz (supra) and stated that since it was a 1954 decision, and 30 years had passed since then, this Court was examining the position afresh. The Court ended with the sermon, “stability of marriages is not an ideal to be scorned.”

18. In V. Revathi v. Union of India and Ors., (1988) 2 SCC 72, this Court, after referring to Sowmithri Vishnu (supra), repelled a similar challenge to Section 198 of the CrPC, 1973. After referring to Sowmithri Vishnu (supra), since Section 497, IPC and Section 198, CrPC go hand in hand and constitute a ‘legislative packet‘ to deal with the offence of adultery committed by an outsider, the challenge to the said Section failed.

19. International trends worldwide also indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws. Thus, adultery continues to be a criminal offence in Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, Philippines, United Arab Emirates, some states of the United States of America, Algeria, Democratic Republic of Congo, Egypt, Morocco, and some parts of Nigeria.

On the other hand, a number of jurisdictions have done away with adultery as a crime. The People‘s Republic of China, Japan, Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria, the Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago, Seychelles etc. are some of the jurisdictions in which it has been done away with. In South Korea21 and Guatemala,22 provisions similar to Section 497 have been struck down by the constitutional courts of those nations.

20. The Supreme Court of Namibia, in an instructive judgment,23 went into whether the criminal offence of adultery would protect marriages and reduce the incidence of adultery. It said:

“[45] But does the action protect marriages from adultery? For the reasons articulated by both the SCA and the Constitutional Court, I do not consider that the action can protect marriage as it does not strengthen a weakening marriage or breathe life into one which is in any event disintegrating. [DE v. RH, 2015 (5) SA 83 (CC) (Constitutional Court of South Africa) para 49]. The reasoning set out by the SCA is salutary and bears repetition:

‘But the question is: if the protection of marriage is one of its main goals, is the action successful in achieving that goal? The question becomes more focused when the spotlight is directed at the following considerations:

(a) First of all, as was pointed out by the German Bundesgericht in the passage from the judgment (JZ 1973, 668) from which I have quoted earlier, although marriage is — ‘a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties. Its essence . . . consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it.‘ If the parties to the marriage have lost that moral commitment, the marriage will fail, and punishment meted out to a third party is unlikely to change that.

(b) Grave doubts are expressed by many about the deterrent effect of the action. In most other countries it was concluded that the action (no longer) has any deterrent effect and I have no reason to think that the position in our society is all that different. Perhaps one reason is that adultery occurs in different circumstances. Every so often it happens without any premeditation, when deterrence hardly plays a role. At the other end of the scale, the adultery is sometimes carefully planned and the participants are confident that it will not be discovered. Moreover, romantic involvement between one of the spouses and a third party can be as devastating to the marital relationship as (or even more so than) sexual intercourse.

(c) If deterrence is the main purpose, one would have thought that this could better be achieved by retaining the imposition of criminal sanctions or by the grant of an interdict in favour of the innocent spouse against both the guilty spouse and the third party to prevent future acts of adultery. But, as we know, the crime of adultery had become abrogated through disuse exactly 100 years ago while an interdict against adultery has never been granted by our courts (see, for example, Wassenaar v Jameson, supra at 352H – 353H). Some of the reasons given in Wassenaar as to why an interdict would not be appropriate are quite enlightening and would apply equally to the appropriateness of a claim for damages. These include, firstly, that an interdict against the guilty spouse is not possible because he or she commits no delict. Secondly, that as against a third party —

‘it interferes with, and restricts the rights and freedom that the third party ordinarily has of using and disposing of his body as he chooses; . . . it also affects the relationship of the third party with the claimant’s spouse, who is and cannot be a party to the interdict, and therefore indirectly interferes with, and restricts her rights and freedom of, using and disposing of her body as she chooses‘. [At 353E.]

(d) In addition the deterrence argument seems to depart from the assumption that adultery is the cause of the breakdown of a marriage, while it is now widely recognised that causes for the breakdown in marriages are far more complex. Quite frequently adultery is found to be the result and not the cause of an unhappy marital relationship. Conversely stated, a marriage in which the spouses are living in harmony is hardly likely to be broken up by a third party.‘”24

21. Coming back to Section 497, it is clear that in order to constitute the offence of adultery, the following must be established:

(i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

22. What is apparent on a cursory reading of these ingredients is that a married man, who has sexual intercourse with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has sexual intercourse with a married woman with the consent or connivance of her husband, he does not commit the offence of adultery. The consent of the woman committing adultery is material only for showing that the offence is not another offence, namely, rape.

23. The background in which this provision was enacted now needs to be stated. In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955. It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the “Hindu Code”, so to speak, a Hindu man can marry only one wife; and adultery has been made a ground for divorce in Hindu Law. Further, the real heart of this archaic law discloses itself when consent or connivance of the married woman‘s husband is obtained – the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the “licensor”, namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has ‘seduced‘ her, she being his victim. What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today‘s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today‘s day and age, utterly irrational. On this basis alone, the law deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts such law as being manifestly arbitrary. That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Court in Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1, as follows:

“101. …… Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

24. It is clear, therefore, that the ostensible object of Section 497, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not in fact the object of Section 497 at all, as has been seen hereinabove. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow, as has been seen hereinabove. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence.

25. The aforesaid provision is also discriminatory and therefore, violative of Article 14 and Article 15(1). As has been held by us hereinabove, in treating a woman as chattel for the purposes of this provision, it is clear that such provision discriminates against women on grounds of sex only, and must be struck down on this ground as well. Section 198, CrPC is also a blatantly discriminatory provision, in that it is the husband alone or somebody on his behalf who can file a complaint against another man for this offence. Consequently, Section 198 has also to be held constitutionally infirm.

26. We have, in our recent judgment in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1, (“Puttaswamy”), held:

“108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).”

xxx xxx xxx

“298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha-suffixed right to privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.”

xxx xxx xxx

“482. Shri Sundaram has argued that rights have to be traced directly to those expressly stated in the fundamental rights chapter of the Constitution for such rights to receive protection, and privacy is not one of them. It will be noticed that the dignity of the individual is a cardinal value, which is expressed in the Preamble to the Constitution. Such dignity is not expressly stated as a right in the fundamental rights chapter, but has been read into the right to life and personal liberty. The right to live with dignity is expressly read into Article 21 by the judgment in Jolly George Varghese v. Bank of Cochin [Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360], at para 10. Similarly, the right against bar fetters and handcuffing being integral to an individual’s dignity was read into Article 21 by the judgment in Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155], at paras 192, 197-B, 234 and 241 and Prem Shankar Shukla v. Delhi Admn. [Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 : 1980 SCC (Cri) 815], at paras 21 and 22. It is too late in the day to canvas that a fundamental right must be traceable to express language in Part III of the Constitution. As will be pointed out later in this judgment, a Constitution has to be read in such a way that words deliver up principles that are to be followed and if this is kept in mind, it is clear that the concept of privacy is contained not merely in personal liberty, but also in the dignity of the individual.”

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“525. But most important of all is the cardinal value of fraternity which assures the dignity of the individual. [In 1834, Jacques-Charles DuPont de l’Eure associated the three terms liberty, equality and fraternity together in the Revue Républicaine, which he edited, as follows: “Any man aspires to liberty, to equality, but he cannot achieve it without the assistance of other men, without fraternity.” Many of our decisions recognise human dignity as being an essential part of the fundamental rights chapter. For example, see Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 at para 21, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 at paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at para 10, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 at para 37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at para 37.] The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorised use of such information. It is clear that Article 21, more than any of the other articles in the fundamental rights chapter, reflects each of these constitutional values in full, and is to be read in consonance with these values and with the international covenants that we have referred to. In the ultimate analysis, the fundamental right to privacy, which has so many developing facets, can only be developed on a case-to-case basis. Depending upon the particular facet that is relied upon, either Article 21 by itself or in conjunction with other fundamental rights would get attracted.”

The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet of Article 21 of the Constitution. A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also.

27. When we come to the decision of this Court in Yusuf Abdul Aziz (supra), it is clear that this judgment also does not, in any manner, commend itself or keep in tune with modern constitutional doctrine. In any case, as has been held above, its ratio is an extremely limited one as it upheld a wife not being punishable as an abettor which is contained in Section 497, IPC. The focus on whether the provision as a whole would be constitutionally infirm was not there in the aforesaid judgment.

At this stage, it is necessary to advert to Chief Justice Chagla‘s foresight in the Bombay High Court judgment which landed up in appeal before this Court in Yusuf Abdul Aziz’s (supra). Chief Justice Chagla had stated that since the underlying idea of Section 497 is that wives are properties of their husbands, Section 497 should not find a place in any modern Code of law, and is an argument in favour of doing away with Section 497 altogether. The day has long since arrived when the Section does, in fact, need to be done away with altogether, and is being done away with altogether.

28. In Sowmithri Vishnu (supra), this Court upheld Section 497 while repelling three arguments against its continuance, as has been noticed hereinabove. This judgment also must be said to be swept away by the tidal wave of recent judgments expanding the scope of the fundamental rights contained in Articles 14, 15, and 21. Ancient notions of the man being the seducer and the woman being the victim permeate the judgment, which is no longer the case today. The moving times have not left the law behind as we have just seen, and so far as engaging the attention of law makers when reform of penal law is undertaken, we may only hasten to add that even when the CrPC was fully replaced in 1973, Section 198 continued to be on the statute book. Even as of today, Section 497 IPC continues to be on the statute book. When these sections are wholly outdated and have outlived their purpose, not only does the maxim of Roman law, cessante ratione legis, cessat ipsa lex, apply to interdict such law, but when such law falls foul of constitutional guarantees, it is this Court‘s solemn duty not to wait for legislation but to strike down such law. As recently as in Shayara Bano (supra), it is only the minority view of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait for the law to change legislatively by way of social reform. The majority view was the exact opposite, which is why Triple Talaq was found constitutionally infirm and struck down by the majority. Also, we are of the view that the statement in this judgment that stability of marriages is not an ideal to be scorned, can scarcely be applied to this provision, as we have seen that marital stability is not the object for which this provision was enacted. On all these counts, therefore, we overrule the judgment in Sowmithri Vishnu (supra). Equally, the judgment in V. Revathi (supra), which upheld the constitutional validity of Section 198 must, for similar reasons, be held to be no longer good law. We, therefore, declare that Section 497 of the Indian Penal Code, 1860 and Section 198 of the Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1), and 21 of the Constitution of India and are, therefore, struck down as being invalid.

……………………………..J.
(R.F. Nariman)

New Delhi;
September 27, 2018.

FOOTNOTE

1 Exodus 20:14 (King James Version).
2 Leviticus 20:10 (King James Version).
3 1 Corinthians 6:9-10 (King James Version).
4 Matthew 5:27-28 (King James Version).
5 John, 8:7 (English Standard Version).
6 THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon Press, UK, 1886).
7 Id., 315.
8 DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA 70-71
(Translation by Patrick Olivelle, Oxford University Press 1999).
9 Id., 116-117.
10 THE KORAN (AL–QUR‘AN): ARABIC-ENGLISH BILINGUAL EDITION WITH AN INTRODUCTION BY MOHAMED A.
‘ARAFA 363 (Maulana Muhammad Ali Translation, TellerBooks, 2018).
11 Id.
12 Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex between Domestic Relations Attorneys and Their Clients, 23 HARVARD WOMEN‘S LAW JOURNAL 1, 21-22 (2000) [“Linda Fitts Mischler”].
13 Tinker v. Colwell, 193 U.S. 473, 481 (1904).
14 Id., 485.
15 [1966] 3 All E.R. 601, 607.
16 Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970.
17 Linda Fitts Mischler, supra n. 12, 23-25.
18 A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR GENERAL OF INDIA IN COUNCIL 91-93 (G.H. Huttmann, The Bengal Military Orphan Press, 1837).
19 COPIES OF THE SPECIAL REPORTS OF THE INDIAN LAW COMMISSIONERS 76 (James C. Melvill, East India House, 1847).
20 1952 ILR Bombay 449, 454.
21 2009 Hun-Ba 17, (26.02.2015) [Constitutional Court of South Korea].
22 Expediente 936-95, (07.03.1996), República de Guatemala Corte de Constitucionalidad [Constitutional Court of Guatemala].
23 James Sibongo v. Lister Lutombi Chaka and Anr. (Case No. SA77-14) (19.08.2016) [Supreme Court of Namibia].
24 Id., 17-19.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO 194 OF 2017

JOSEPH SHINE …Petitioner
VERSUS
UNION OF INDIA …Respondent

J U D G M E N T

Index

A Gender: the discursive struggle

B Judicial discourse on adultery

C Relics of the past

D Across frontiers

E Confronting patriarchy F ‘The Good Wife’

F.1 The entrapping cage

G Denuding identity – women as sexual property

G.1 Exacting fidelity: the intimacies of marriage

H Towards transformative justice

Dr Dhananjaya Y Chandrachud, J

A Gender: the discursive struggle

1 Our Constitution is a repository of rights, a celebration of myriad freedoms and liberties. It envisages the creation of a society where the ideals of equality, dignity and freedom triumph over entrenched prejudices and injustices. The creation of a just, egalitarian society is a process. It often involves the questioning and obliteration of parochial social mores which are antithetical to constitutional morality. The case at hand enjoins this constitutional court to make an enquiry into the insidious permeation of patriarchal values into the legal order and its role in perpetuating gender injustices.

2 Law and society are intrinsically connected and oppressive social values often find expression in legal structures. The law influences society as well but societal values are slow to adapt to leads shown by the law. The law on adultery cannot be construed in isolation. To fully comprehend its nature and impact, every legislative provision must be understood as a ‘discourse’ about social structuring.1 However, the discourse of law is not homogenous.2 In the context particularly of Section 497, it regards individuals as ‘gendered citizens’.3 In doing so, the law creates and ascribes gender roles based on existing societal stereotypes. An understanding of law as a ‘discourse’ would lead to the recognition of the role of law in creating ‘gendered identities’.4

3 Over the years, legal reform has had a significant role in altering the position of women in societal orderings. This is seen in matters concerning inheritance and in the protection against domestic violence. However, in some cases, the law operates to perpetuate an unequal world for women. Thus, depending on the manner in which it is used, law can act as an agent of social change as well as social stagnation. Scholar Patricia Williams, who has done considerable work on the critical race theory, is sanguine about the possibility of law engendering progressive social transformation:

“It is my deep belief that theoretical legal understanding and social transformation need not be oxymoronic”5

The Constitution, both in text and interpretation, has played a significant role in the evolution of law from being an instrument of oppression to becoming one of liberation. Used in a liberal perspective, the law can enhance democratic values. As an instrument which preserves the status quo on the other hand, the law preserves stereotypes and legitimises unequal relationships based on pre- existing societal discrimination. Constantly evolving, law operates as an important “site for discursive struggle”, where ideals compete and new visions are shaped.6. In regarding law as a “site of discursive struggle”, it becomes imperative to examine the institutions and structures within which legal discourse operates:7

“The idea of neutral dialogue is an idea which denies history, denies structure, denies the positioning of subjects.”8

In adjudicating on the rights of women, the Court must not lose sight of the institutions and values which have forced women to a shackled existence so far. To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.

4 In the preceding years, the Court has evolved a jurisprudence of rights- granting primacy to the right to autonomy, dignity and individual choice. The right to sexual autonomy and privacy has been granted the stature of a Constitutional right. In confronting the sources of gendered injustice which threaten the rights and freedoms promised in our Constitution, we set out to examine the validity of Section 497 of the Indian Penal Code. In doing so, we also test the constitutionality of moral and societal regulation of women and their intimate lives through the law.

B Judicial discourse on adultery

5 This Court, on earlier occasions, has tested the constitutionality of Section 497 of the Indian Penal Code as well as Section 198(2) of the Code of Criminal Procedure.

Section 497 reads thus:

“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.”

Section 198(2) of the Code of Criminal Procedure reads thus:

“(2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.”

6 The decision of the Constitution Bench in Yusuf Abdul Aziz v State of Bombay9, arose from a case where the appellant was being prosecuted for adultery under Section 497. On a complaint being filed, he moved the High Court to determine the constitutional question about the validity of the provision, under Article 228. The High Court decided against the appellant10, but Chief Justice Chagla made an observation about the assumption underlying Section 497:

“Mr Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that the offence is only cognizable with the consent of the husband emphasises that point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are past, when women were looked upon as property by their husbands.”

A narrow challenge was addressed before this Court. The judgment of Justice Vivian Bose records the nature of the challenge:

“3. Under Section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor.

The last sentence in Section 497 prohibits this. It runs—

“In such case the wife shall not be punishable as an abettor”. It is said that this offends Articles 14 and 15.”

Hence, the challenge was only to the prohibition on treating the wife as an abettor. It was this challenge which was dealt with and repelled on the ground that Article 14 must be read with the other provisions of Part III which prescribe the ambit of the fundamental rights. The prohibition on treating the wife as an abettor was upheld as a special provision which is saved by Article 15(3). The conclusion was that:

“5. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.”

7 The challenge was to a limited part of Section 497: that which prohibited a woman from being prosecuted as an abettor. Broader issues such as whether (i) the punishment for adultery violates Article 21; (ii) the statutory provision suffers from manifest arbitrariness; (iii) the legislature has, while ostensibly protecting the sanctity of marriage, invaded the dignity of women; and (iv) Section 497 violates Article 15(1) by enforcing gender stereotypes were neither addressed before this Court nor were they dealt with.

This Court construed the exemption granted to women from criminal sanctions as a ‘special provision’ for the benefit of women and thus, protected under Article 15(3) of the Constitution. In Union of India v Elphinstone Spinning and Weaving Co. Ltd,11 a Constitution Bench of this Court held:

“17…When the question arises as to the meaning of a certain provision in a statute it is not only legitimate but proper to read that provision in its context. The context means the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy…”12

It is of particular relevance to examine the mischief that the provision intends to remedy. The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency. Thus, Section 497 was never conceived to benefit women. In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery become evident when the provision is considered as a whole.

8 In the subsequent decision of the three judge Bench in Sowmithri Vishnu v Union of India13, the court proceeded on the basis that the earlier decision in Yusuf Abdul Aziz had upheld Section 497 against a challenge based on Articles 14 and 15 of the Constitution. This is not a correct reading or interpretation of the judgment.

9 Sowmithri Vishnu did as a matter of fact consider the wider constitutional challenge on the ground that after the passage of thirty years, “particularly in the light of the alleged social transformation in the behavioural pattern of women in matters of sex”, it had become necessary that the matter be revisited. Sowmithri Vishnu arose in a situation where a petition for divorce by the appellant against her husband on the ground of desertion was dismissed with the finding that it was the appellant who had deserted her husband. The appellant’s husband then sued for divorce on the ground of desertion and adultery. Faced with this petition, the appellant urged that a decree for divorce on the ground of desertion may be passed on the basis of the findings in the earlier petition. She, however, opposed the effort of the husband to urge the ground of adultery. While the trial court accepted the plea of the husband to assert the ground of adultery, the High Court held in revision that a decree of divorce was liable to be passed on the ground of desertion, making it unnecessary to inquire into adultery. While the petition for divorce was pending against the appellant, her husband filed a complaint under Section 497 against the person with whom the appellant was alleged to be in an adulterous relationship. The appellant then challenged the constitutional validity of Section 497.

The judgment of the three judge Bench indicates that three grounds of challenge were addressed before this Court : first, while Section 497 confers a right on the husband to prosecute the adulterer, it does not confer upon the wife to prosecute the woman with whom her husband has committed adultery; second, Section 497 does not confer a right on the wife to prosecute her husband who has committed adultery with another woman; and third, Section 497 does not cover cases where a man has sexual relations with an unmarried woman. The submission before this Court was that the classification under Section 497 was irrational and ‘arbitrary’. Moreover, it was also urged that while facially, the provision appears to be beneficial to a woman, it is in reality based on a notion of paternalism “which stems from the assumption that women, like chattels, are the property of men.”

10 The decision in Sowmithri Vishnu dealt with the constitutional challenge by approaching the discourse on the denial of equality in formal, and rather narrow terms. Chandrachud, CJ speaking for the three judge Bench observed that by definition, the offence of adultery can be committed by a man and not by a woman. The court construed the plea of the petitioner as amounting to a

suggestion that the definition should be recast in a manner that would make the offence gender neutral. The court responded by observing that this was a matter of legislative policy and that the court could invalidate the provision only if a constitutional violation is established. The logic of the court, to the effect that extending the ambit of a statutory definition is a matter which requires legislative change is unexceptionable. The power to fashion an amendment to the law lies with the legislature. But this only leads to the conclusion that the court cannot extend the legislative prescription by making the offence gender neutral. It does not answer the fundamental issue as to whether punishment for adultery is valid in constitutional terms. The error in Sowmithri Vishnu lies in holding that there was no constitutional infringement. The judgment postulates that:

“7…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 Forty-second 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 report of the Law Commission shows 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.”14

These observations indicate that the constitutional challenge was addressed purely from the perspective of the argument that Section 497 is not gender neutral, in allowing only the man but not to the woman in a sexual relationship to be prosecuted. The court proceeded on the assumption, which it regards as “commonly accepted that it is the man who is the seducer and not the woman.” Observing that this position may have undergone some change, over the years, the decision holds that these are matters for the legislature to consider and that the desirability of deleting Section 497 is not a ground for invalidation.

11 The decision in Sowmithri Vishnu has left unanswered the fundamental challenge which was urged before the Court. Under Article 14, the challenge was that the statutory provision treats a woman purely as the property of her husband. That a woman is regarded no more than as a possession of her husband is evidenced in Section 497, in more than one context. The provision stipulates that a man who has sexual intercourse with the wife of another will not be guilty of offence if the husband of the woman were to consent or, (worse still, to connive. In this, it is evident that the legislature attributes no agency to the woman. Whether or not a man with whom she has engaged in sexual intercourse is guilty of an offence depends exclusively on whether or not her husband is a consenting individual. No offence exists if her husband were to consent. Even if her husband were to connive at the act, no offence would be made out. The mirror image of this constitutional infirmity is that the wife of the man who has engaged in the act has no voice or agency under the statute. Again, the law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman. His wife is not regarded by the law as a person whose agency and dignity is affected. The underlying basis of not penalising a sexual act by a married man with a single woman is that she (unlike a married woman) is not the property of a man (as the law would treat her to be if she is married). Arbitrariness is writ large on the provision. The problem with Section 497 is not just a matter of under inclusion. The court in Sowmithri Vishnu recognised that an under-inclusive definition is not necessarily discriminatory and that the legislature is entitled to deal with the evil where it is felt and seen the most. The narrow and formal sense in which the provisions of Article 14 have been construed is evident again from the following observations:

“8…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.”15

The decision of the three judge Bench does not address the central challenge to the validity of Section 497. Section 497, in its effort to protect the sanctity of marriage, has adopted a notion of marriage which does not regard the man and the woman as equal partners. It proceeds on the subjection of the woman to the will of her husband. In doing so, Section 497 subordinates the woman to a position of inferiority thereby offending her dignity, which is the core of Article 21. Significantly, even the challenge under Article 21 was addressed on behalf of the petitioner in that case in a rather narrow frame. The argument before this Court was that at the trial involving an offence alleged to have been committed under Section 497, the woman with whom the accused is alleged to have had sexual intercourse would have no right of being heard. It was this aspect alone which was addressed in Sowmithri Vishnu when the court held that such a right of being heard can be read in an appropriate case. Ultimately, the court held that:

“12…It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationships is punishable by law. Stability of marriages is not an ideal to be scorned.”16

Sowmithri Vishnu has thus proceeded on the logic that in specifying an offence, it is for the legislature to define what constitutes the offence. Moreover, who can prosecute and who can be prosecuted, are matters which fall within the domain of the law. The inarticulate major premise of the judgment is that prosecution for adultery is an effort to protect the stability of marriages and if the legislature has sought to prosecute only a limited class of ‘adulterous relationships’, its choice could not be questioned. ‘Sowmithri Vishnu’ fails to deal with the substantive aspects of constitutional jurisprudence which have a bearing on the validity of Section 497: the guarantee of equality as a real protection against arbitrariness, the guarantee of life and personal liberty as an essential recognition of dignity, autonomy and privacy and above all gender equality as a cornerstone of a truly equal society. For these reasons, the decision in Sowmithri Vishnu cannot be regarded as a correct exposition of the constitutional position. Sowmithri Vishnu is overruled.

12 The decision of a two judge Bench in V Revathi v Union of India17 involved a challenge to Section 497 (read with Section 198(2) of the Code of Criminal Procedure) which disables a wife from prosecuting her husband for being involved in an adulterous relationship. The court noted that Section 497 permits neither the husband of the offending wife to prosecute her nor does it permit the wife to prosecute her offending husband for being disloyal. This formal sense of equality found acceptance by the court. The challenge was repelled by relying on the decision in Sowmithri Vishnu. Observing that Section 497 and Section 198(2) constitute a “legislative packet”, the court observed that the provision does not allow either the wife to prosecute an erring husband or a husband to prosecute the erring wife. In the view of the court, this indicated that there is no discrimination on the ground of sex. In the view of the court :

“5…The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practised in circumscribing the scope of Section 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.”18

13 The decision in Revathi is a reiteration of Sowmithri Vishnu. It applies the doctrine of equality and the prohibition against discrimination on the ground of sex in a formalistic sense. The logic of the judgment is that since neither of the spouses (man or woman) can prosecute the erring spouse, the provision does not discriminate on the ground of sex. Apart from reading equality in a narrow confine, the judgment does not deal with crucial aspects bearing on the constitutionality of the provision. Revathi, like Sowmithri Vishnu does not lay down the correct legal principle.

C Relics of the past

“Our Massachusetts magistracy…have not been bold to put in force the extremity of our righteous law against her. The penalty thereof is death. But in their great mercy and tenderness of heart they have doomed Mistress Prynne to stand only a space of three hours on the platform of the pillory, and then and thereafter, for the remainder of her natural life to wear a mark of shame upon her bosom.”19

14 Section 497 of the Indian Penal Code, 1860 makes adultery a punishable offence against “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.” It goes on to state that, “in such case the wife shall not be punishable as an abettor.” The offence applies only to the man committing adultery. A woman committing adultery is not considered to be an “abettor” to the offence. The power to prosecute for adultery rests only with the husband of the woman.

Understanding the gendered nature of Section 497 needs an inquiry into the origins of the provision itself as well as the offence of adultery more broadly. The history of adultery throws light upon disparate attitudes toward male and female infidelity, and reveals the double standard in law and morality that has been applied to men and women.20

15 Throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these.21 The earliest recorded injunctions against adultery are found in the ancient code of the Babylonian king Hammurabi, dating from circa 1750 B.C. The code prescribed that a married woman caught in adultery be bound to her lover and thrown into water so that they drown together.22 By contrast, Assyrian law considered adultery to be a private wrong for which the husband or father of the woman committing adultery could seek compensation from her partner.23 English historian Faramerz Dabhoiwala notes that the primary purpose of these laws was to protect the property rights of men:

“Indeed, since the dawn of history every civilisation had prescribed severe laws against at least some kind of sexual immorality. The oldest surviving legal codes (c.2100-1700 BCE), drawn up by the kings of Babylon made adultery punishable by death and most other near Eastern and classical culture also treated it as a serious offence…The main concern of such laws was usually to uphold the honour and property rights of fathers, husbands and higher status groups…”24

16 In Ancient Greco-Roman societies, there existed a sexual double standard according to which adultery constituted a violation of a husband’s exclusive sexual access to his wife, for which the law allowed for acts of revenge.25 In 17 B.C., Emperor Augustus passed the Lex Julia de adulteriis coercendis, which stipulated that a father was allowed to kill his daughter and her partner when caught committing adultery in his or her husband’s house.26 While in the Judaic belief adultery merited death by stoning for both the adulteress and her partner,27 Christianity viewed adultery more as a moral and spiritual failure than as a public crime.28 The penalties of the Lex Julia were made more severe by Christian emperors. Emperor Constantine, for instance, introduced the death penalty for adultery, which allowed the husband the right to kill his wife if she committed adultery.29 Under the Lex Julia, adultery was primarily a female offence, and the law reflected the sentiments of upper-class Roman males.30

17 Once monogamy came to be accepted as the norm in Britain between the fourth and fifth centuries, adultery came to be recognized as a serious wrong that interfered with a husband’s “rights” over his wife.31 The imposition of criminal sanctions on adultery was also largely based on ideas and beliefs about sexual morality which acquired the force of law in Christian Europe during the Middle Ages.32 The development of canon law in the twelfth century enshrined the perception of adultery as a spiritual misdemeanour. In the sixteenth century, following the Reformation, adultery became a crucial issue because Protestants placed new emphasis on marriage as a linchpin of the social and moral order.33 Several prominent sixteenth century reformers, including Martin Luther and John Calvin, argued that a marriage was irreparably damaged by infidelity, and they advocated divorce in such cases.34

Concerned with the “moral corruption” prevalent in England since the Reformation, Puritans in the Massachusetts Bay Colony introduced the death penalty for committing adultery.35 The strict morality of the early English colonists is reflected in the famous 1850 novel ‘The Scarlet Letter’ by Nathaniel Hawthorne, in which an unmarried woman who committed adultery and bore a child out of wedlock was made to wear the letter A (for adulterer) when she went out in public; her lover was not so tagged, suggesting that women were punished more severely than men for adultery, especially when they had a child as evidence.36

18 In 1650, England enacted the infamous Act for Suppressing the Detestable Sins of Incest, Adultery and Fornication, which introduced the death penalty for sex with a married woman.37 The purpose of the Act was as follows:
“For the suppressing of the abominable and crying sins of…adultery… wherewith this Land is much defiled, and Almighty God highly displeased; be it enacted…That in case any married woman shall…be carnally known by any man (other than her husband)…as well the man as the woman…shall suffer death.”

The Act was a culmination of long-standing moral concerns about sexual transgressions, sustained endeavours to regulate conjugal matters on a secular plain, and a contemporaneous political agenda of socio-moral reform.38 It was repealed in 1660 during the Restoration. The common law, however, was still concerned with the effect of adultery by a married woman on inheritance and property rights. It recognized the “obvious danger of foisting spurious offspring upon her unsuspecting husband and bringing an illegitimate heir into his family.”39 Accordingly, secular courts treated adultery as a private injury and a tort for criminal conversation was introduced in the late 17th century, which allowed the husband to sue his wife’s lover for financial compensation.40

19 In 19th century Britain, married women were considered to be chattel of their husbands in law, and female adultery was subjected to ostracism far worse than male adultery because of the problem it could cause for property inheritance through illegitimate children.41 Consequently, many societies viewed chastity, together with related virtues such as modesty, as more central components of a woman’s honor and reputation than of a man’s.42 The object of adultery laws was not to protect the bodily integrity of a woman, but to allow her husband to exercise control over her sexuality, in order to ensure the purity of his own bloodline. The killing of a man engaged in an adulterous act with one’s wife was considered to be manslaughter, and not murder.43 In R v Mawgridge,44 Judge Holt wrote that:
“…[A] man is taken in adultery with another man’s wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property.” (Emphasis supplied)

20 In his Commentaries on the Laws of England, William Blackstone wrote that under the common law, “the very being or legal existence of the woman [was] suspended during the marriage, or at least [was] incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performe[d] everything.”45 In return for support and protection, the wife owed her husband “consortium” of legal obligations, which included sexual intercourse.46 Since adultery interfered with the husband’s exclusive entitlements, it was considered to be the “highest possible invasion of property,” similar to theft.47 In fact, civil actions for adultery evolved from actions for enticing away a servant from a master and thus depriving the master of the quasi-proprietary interest in his services.48

Faramerz Dabhoiwala notes that a man’s wife was considered to be his property, and that another man’s “unlawful copulation” with her warranted punishment:

“…[T]he earliest English law codes, which date from this time, evoke a society where women were bought and sold and lived constantly under the guardianship of men. Even in cases of consensual sex, its system of justice was mainly concerned with the compensation one man should pay to another for unlawful copulation with his female chattel.”

21 When the IPC was being drafted, adultery was not a criminal offence in common law. It was considered to be an ecclesiastical wrong “left to the feeble coercion of the Spiritual Court, according to the rules of Canon Law.”49 Lord Thomas Babington Macaulay, Chairman of the First Law Commission of India and principal architect of the IPC, considered the possibility of criminalizing adultery in India, and ultimately concluded that it would serve little purpose.50 According to Lord Macaulay, the possible benefits from an adultery offence could be better achieved through pecuniary compensation.51 Section 497 did not find a place in the first Draft Penal Code prepared by Lord Macaulay. On an appraisal of the facts and opinions collected from all three Presidencies about the feasibility criminalizing adultery, he concluded in his Notes to the IPC that:

“…All the existing laws for the punishment of adultery are altogether inefficacious for the purpose of preventing injured husbands of the higher classes from taking the law into their own hands; secondly; that scarcely any native of higher classes ever has recourse to the courts of law in a case of adultery for redress against either his wife, or her gallant; thirdly, that the husbands who have recourse in case of adultery to the Courts of law are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider wives as useful members of their small households, that they generally complain not of the wound given to their affections, not of the stain on their honor , but of the loss of a menial whom they cannot easily replace, and that generally their principal object is that the women may be sent back.” These things being established, it seems to us that no advantage is to be expected from providing a punishment for adultery. We think it best to treat adultery merely as a civil injury.”52 (Emphasis supplied)

22 The Law Commissioners, in their Second Report on the Draft Penal Code, disagreed with Lord Macaulay’s view. Placing heavy reliance upon the status of women in India, they concluded that:

“While we think that the offence of adultery ought not to be omitted from the code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in note Q, regarding the condition of the women, in this country, in deference to it, we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trial “together”, and empower the Court in the event of their conviction to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine.”53

The Law Commissioners’ decision to insert Section 497 into the IPC was rooted in their concern about the possibility of the “natives” resorting to illegal measures to avenge the injury in cases of adultery:

“The backwardness of the natives to have recourse to the courts of redress in cases of adultery, [Colonel Sleeman] asserts, “arises from the utter hopelessness on their part of ever getting a conviction in our courts upon any evidence that such cases admit of;” that is to say, in courts in which the Mahommedan law is observed. “The rich man…not only feels the assurance that he could not get a conviction, but dreads the disgrace of appearing publicly in one court after another, to prove…his own shame and his wife’s dishonor. He has recourse to poison secretly, or with his wife’s consent; and she will generally rather take it than be turned out into the streets a degraded outcast. The seducer escapes with impunity, he suffers nothing, while his poor victim suffers all that human nature is capable of enduring…The silence of the Penal Code will give still greater impunity to the seducers, while their victims will, in three cases out of four, be murdered, or driven to commit suicide. Where husbands are in the habit of poisoning their guilty wives from the want of legal means of redress, they will sometimes poison those who are suspected upon insufficient grounds, and the innocent will suffer.”54

Section 497 and Section 198 are seen to treat men and women unequally, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery. Additionally, if there is “consent or connivance” of the husband of a woman who has committed adultery, no offence can be established. In its 42nd Report, the Law Commission of India considered the legislative history of Section 497 and the purported benefit of criminal sanctions for adultery. The Committee concluded that, “though some of us were personally inclined to recommend repeal of the section, we think on the whole that the time has not yet come for making such a radical change in the existing position.”55 It recommended that Section 497 be retained, but with a modification to make women who commit adultery liable as well.

23 In its 156th Report, the Law Commission made a proposal which it believed reflected the “‘transformation’ which the society has undergone,” by suggesting removing the exemption from liability for women under Section 497.56 In 2003, the Justice Malimath Committee recommended that Section 497 be made gender-neutral, by substituting the words of the provision with “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.”57 The Committee supported earlier proposals to not repeal the offence, but to equate liability for the sexes:

“The object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).”58

Neither the recommendations of the Law Commission nor those of the Malimath Committee have been accepted by the Legislature. Though women are exempted from prosecution under Section 497, the underlying notion upon which the provision rests, which conceives of women as property, is extremely harmful. The power to prosecute lies only with the husband (and not to the wife in cases where her husband commits adultery), and whether the crime itself has been committed depends on whether the husband provides “consent for the allegedly adulterous act.”

24 Women, therefore, occupy a liminal space in the law: they cannot be prosecuted for committing adultery, nor can they be aggrieved by it, by virtue of their status as their husband’s property. Section 497 is also premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. The notion that women are ‘victims’ of adultery and therefore require the beneficial exemption under Section 497 has been deeply criticized by feminist scholars, who argue that such an understanding of the position of women is demeaning and fails to recognize them as equally autonomous individuals in society.59 Effectively, Indian jurisprudence has interpreted the constitutional guarantee of sex equality as a justification for differential treatment: to treat men and women differently is, ultimately, to act in women’s interests.60 The status of Section 497 as a “special provision”61 operating for the benefit of women, therefore, constitutes a paradigmatic example of benevolent patriarchy.

25 Throughout history, the law has failed to ask the woman question.62 It has failed to interrogate the generalizations or stereotypes about the nature, character and abilities of the sexes on which laws rest, and how these notions affect women and their interaction with the law. A woman’s ‘purity’ and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognized as being so today. It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497.

D Across frontiers

26 The last few decades have been characterized by numerous countries around the world taking measures to decriminalize the offence of adultery due to the gender discriminatory nature of adultery laws as well as on the ground that they violate the right to privacy. However, progressive action has primarily been taken on the ground that provisions penalising adultery are discriminatory against women either patently on the face of the law or in their implementation. Reform towards achieving a more egalitarian society in practice has also been driven by active measures taken by the United Nations and other international human rights organizations, where it has been emphasized that even seemingly gender- neutral provisions criminalising adultery cast an unequal burden on women:63
“Given continued discrimination and inequalities faced by women, including inferior roles attributed to them by patriarchal and traditional attitudes, and power imbalances in their relations with men, the mere fact of maintaining adultery as a criminal offence, even when it applies to both women and men, means in practice that women mainly will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality.”

The abolishing of adultery has been brought about in equal measure by legislatures and courts. When decisions have been handed down by the judiciary across the world, it has led to the creation of a rich body of transnational jurisprudence. This section will focus on a few select comparative decisions emanating from the courts of those countries where the provision criminalizing
adultery has been struck down through judicial action. The decisions of these courts reflect how the treatment of the law towards adultery has evolved with the passage of time and in light of changing societal values.

27 In 2015, the South Korean Constitutional Court,64 by a majority of 7-2 struck down Article 241 of the Criminal Law; a provision which criminalized adultery with a term of imprisonment of two years as unconstitutional. In doing so, South Korea joined a growing list of countries in Asia and indeed around the world that have taken the measure of effacing the offence of adultery from the statute books, considering evolving public values and societal trends. The Constitutional Court had deliberated upon the legality of the provision four times previously65, but chose to strike it down when it came before it in 2015, with the Court’s judgement acknowledging the shifting public perception of individual rights in their private lives.

The majority opinion of the Court was concurred with by five of the seven judges66 who struck down the provision. The majority acknowledged that the criminal provision had a legitimate legislative purpose in intending “to promote the marriage system based on good sexual culture and practice and monogamy and to preserve marital fidelity between spouses.” However, the Court sought to strike a balance between the legitimate interest of the legislature in promoting the institution of marriage and marital fidelity vis-à-vis the fundamental right of an individual to self-determination, which included sexual-self-determination, and was guaranteed under Article 10 of their Constitution.67 The Court held:

“The right to self-determination connotes the right to sexual self-determination that is the freedom to choose sexual activities and partners, implying that the provision at issue restricts the right to sexual self-determination of individuals. In addition, the provision at Issue also restricts the right to privacy protected under Article 17 of the Constitution in that it restricts activities arising out of sexual life belonging to the intimate private domain.”

The Court used the test of least restrictiveness, and began by acknowledging that there no longer existed public consensus on the criminalization of adultery, with the societal structure having changed from holding traditional family values and a typeset role of family members to sexual views driven by liberal thought and individualism. While recognizing that marital infidelity is immoral and unethical, the Court stated that love and sexual life were intimate concerns, and they should not be made subject to criminal law. Commenting on the balance between an individual’s sexual autonomy vis-à-vis societal morality, the Court remarked:
“…the society is changing into one where the private interest of sexual autonomy is put before the social interest of sexual morality and families from the perspective of dignity and happiness of individuals.”68 Next, the Court analysed the appropriateness and effectiveness of criminal punishment in curbing the offence of adultery. Addressing the question of whether adultery should be regulated, the Court stated that modern criminal law dictated that the State should not seek to interfere in an act that is not socially harmful or deleterious to legal interests, simply because it is repugnant to morality. Moreover, it held that the State had no business in seeking to control an individual’s actions which were within the sphere of his or her constitutionally protected rights of privacy and self-determination.

Moving on to the effectiveness of the provision at hand, the Court remarked that criminalizing adultery did not help save a failing marriage. The Court remarked that it was obvious that once a spouse was accused of adultery, the consequence was generally intensified spousal conflict as opposed to the possibility of family harmony:
“Existing families face breakdown with the invoking of the right to file an accusation. Even after cancellation of the accusation, it is difficult to hope for emotional recovery between spouses. Therefore, the adultery crime can no longer contribute to protecting the marital system or family order. Furthermore, there is little possibility that a person who was punished for adultery would remarry the spouse who had made an accusation against himself/herself. It is neither possible to protect harmonious family order because of the intensified conflict between spouses in the process of criminal punishment of adultery.”69 Addressing the concern that an abolition of a penal consequence would result in “chaos in sexual morality” or an increase of divorce due to adultery, the Court concluded that there was no data at all to support these claims in countries where adultery is repealed, stating:

“Rather, the degree of social condemnation for adultery has been reduced due to the social trend to value the right to sexual self-determination and the changed recognition on sex, despite of the punishment of adultery. Accordingly, it is hard to anticipate a general and special deterrence effect for adultery from the perspective of criminal policy as it loses the function of regulating behaviour.”70

The Court also analysed the argument that adultery provisions protected women:

“It is true that the existence of adultery crimes in the past Korean society served to protect women. Women were socially and economically underprivileged, and acts of adultery were mainly committed by men. Therefore, the existence of an adultery crime acted as psychological deterrence for men, and, furthermore, enabled female spouses to receive payment of compensation for grief or divided assets from the male spouse on the condition of cancelling the adultery accusation.

However, the changes of our society diluted the justification of criminal punishment of adultery. Above all, as women’s earning power and economic capabilities have improved with more active social and economic activities, the premise that women are the economically disadvantaged does not apply to all married couples.”

Finally, the Court concluded its analysis by holding that the interests of enforcing monogamy, protecting marriage and promoting marital fidelity, balanced against the interference of the State in the rights to privacy and sexual autonomy were clearly excessive and therefore failed the test of least restrictiveness.71

28 In 2007, the Ugandan Constitutional Court in Law Advocacy for Women in Uganda v Attorney General of Uganda72, was called upon to rule on the constitutionality of Section 154 of the Penal Code, on, the grounds that it violated various protections granted by the Ugandan Constitution and meted out discriminatory treatment between women and men. The law as it stood allowed a married man to have a sexual relationship with an unmarried woman. Moreover, only a man could be guilty of the offence of adultery when he had sexual intercourse with a married woman. The same provision, however, penalized a married woman who engaged in a sexual relationship with an unmarried or married man outside of the marriage. The penalties for the offence also prescribed a much stricter punishment for women as compared to their male counterparts.73 The challenge was brought primarily under Article 21 of the Ugandan Constitution, which guaranteed equality under the law, Article 24 which mandates respect for human dignity and protection from inhuman treatment and Article 33(1), which protected the rights of women under the Constitution. 74

The Respondent prayed that the Court consider making the provision of adultery equal in its treatment of men and women, instead of striking it down completely. However, in its holding, the Court denied this request, holding it could not prescribe a punishment under penal law to change the statute. The Court held that Section 154 of the Penal Code was wholly unconstitutional as being violative of the provisions of the Constitution, and remarked:

“…the respondent did not point out to us areas that his Court can or should modify and adapt to bring them in conformity with the provisions of the Constitution. The section is a penal one and this Court in our considered opinion cannot create a sentence that the courts can impose on adulterous spouses.

Consequently, it is our finding that the provision of section 154 of the Penal Code Act is inconsistent with the stated provisions of the Constitution and it is void.”75

29 In 2015, in DE v RH,76 the Constitutional Court of South Africa held that an aggrieved spouse could no longer seek damages against a third party in cases of adultery. Madlanga J poignantly remarked on the preservation of marriage:

“…although marriage is ‘a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties . . . Its essence . . . consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it’. If the parties to the marriage have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that.”77

The decisions of the US Supreme Court bearing on the issue of privacy have been analysed in an incisive article, titled “For Better or for Worse: Adultery, Crime and The Constitution”78, by Martin Siegel. He presents three ways in which adultery implicates the right to privacy. The first is that adultery must be viewed as a constitutionally protected marital choice. Second, that certain adulterous relationships are protected by the freedom of association and finally, that adultery constitutes an action which is protected by sexual privacy.79 A brief study is also undertaken on whether action penalizing adultery constitutes a legitimate interest of the State.

The first privacy interest in adultery is the right to marital choice. The U.S. Supreme Court has upheld the values of ‘fundamental liberty’, ‘freedom of choice’ and ‘the ‘right to privacy’ in marriage. With this jurisprudence, the author argues, it would be strange if a decision to commit adultery is not a treated as a matter of marriage and family life as expressed in Cleveland Board80, ‘an act occurring in marriage’, as held in Griswold81 or a ‘matter of marriage and family life’ as elucidated in Carey.82

Siegel posits that a decision to commit adultery is a decision ‘relating to marriage and family relationships’ and therefore, falls within the domain of protected private choices. He observes that the essence of the offence is in fact the married status of one of the actors, and the mere fact that the commission of the act consisted of a mere sexual act or a series of them is legally irrelevant. If the argument that adultery, though unconventional, is an act related to marriage and therefore fundamentally private is accepted, then it deserves equal protection. Siegel cites Laurence Tribe, on accepting the ‘unconventional variants’ that also form a part of privacy:
“Ought the “right to marriage,” as elucidated by Griswold, Loving v. Virginia, Zablocki, Boddie v. Connecticut and Moore, also include marriage’s “unconventional variants”-in this case the adulterous union?”83

The mere fact that adultery is considered unconventional in society does not justify depriving it of privacy protection. The freedom of making choices also encompasses the freedom of making an ‘unpopular’ choice. This was articulated by Justice Blackmun in his dissent in Hardwick84:

“A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.”85

Siegel concludes that the privacy protections afforded to marriage must extend to all choices made within the marriage:

“The complexity and diversity among marriages make it all the more important that the privacy associated with that institution be construed to include all kinds of marriages, sexually exclusive as well as open, ‘good’, as well as ‘bad’.”86

Siegel then proceeds to examine the next privacy interest in adultery, that of the right to association. The right to freedom of association he states is ‘a close constitutional relative of privacy’87, and they often interact in an intertwined manner. Siegel proceeds to explain that adultery must not simply be looked at as an act of consensual adult sexual activity, as sexual activity may simply be one element in a continuum of interactions between people:

“Sexual activity may be preliminary or incidental to a developing association, or it may be its final culmination and solidification. In either case, it is simply one more element of the relationship. Two people may have sex upon first meeting. In this case, associational interests seem less important, although “loveless encounters are sometimes prerequisites for genuine love relationships; to forbid the former is, therefore, to inhibit the latter.”‘ 88

Next, Siegel examines the plausible protection of adultery through the lens of the freedom of expression. Since the act of engaging in sexual activity can be interpreted as being expressive, Siegel claims adultery might also implicate First Amendment rights. In support he cites a body of case law89,where courts have held that First Amendment rights are not limited to merely verbal expression but also encompass the right to ‘expressive association’.

In concluding his section on the right to associate, Siegel warns against the dangers of classifying adultery solely as a sexual activity, as doing so would be akin to protecting a part of the relationship and criminalizing the other. This would be manifestly unjust:

“It is difficult, both theoretically and practically, to single out the sexual contacts two people may have from the rest of their relationship- to criminalize the one and constitutionally protect as fundamental the other”. 90

Lastly, Siegel discusses the connection between adultery and the right to sexual privacy. It is accepted that a right to privacy safeguards an individual’s deeply personal choices which includes a recognition accorded to the inherently private nature of all consensual adult sexual activity.91 This understanding of sexual privacy found favour with the U.S. Supreme Court, which in Thornburgh v American College of Obstetricians and Gynaecologists92 quoted Charles Fried with approval:

“The concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole.”93

Siegel reiterates the underlying intangible value of adult consensual sexual activity:

“The real importance of sexuality to humans, more so in today’s world of effective birth control than ever, lies in the possibilities for self-realization and definition inherent in sexual choices. Sexual experience offers “self- transcendence, expression of private fantasy, release of inner tensions, and meaningful and acceptable expression of regressive desires to be again the free child – unafraid to lose control, playful, vulnerable, spontaneous, sensually loved.”94

Reflecting on the relationship between marital privacy and associational freedom, Spiegel remarks the “heterogeneity of experience”, resulting in a variety of choices, necessarily include the adulterous union which must be protected since it is unrealistic to expect all individuals to conform to society’s idea of sexuality:

“Because sex is so much a part of our personhood, we should not expect that people different in so many other ways will be identical sexually. For some, adultery is a cruel betrayal, while for others it is just comeuppance for years of spousal neglect. In some marriages, sex is the epitome of commitment, while in others spouses jointly and joyfully dispense with sexual monogamy.”95

In concluding the author states that the foregoing three-layered analysis left no room for doubt that adultery was a matter of marriage.

It therefore deserved to be protected like all other affairs occurring in marriage and implicated routine privacy-based freedoms, and it was imperative to treat is as such. Spiegel concludes by quoting the U.S. Supreme Court in Eisenstadt v Braid, on the importance of protecting the power to make a ‘bad’ choice in a marriage:

“A marriage’s privacy and autonomy are the best routes to safeguarding liberty and pluralism. This is no less true when the power to choose, as it inevitably will, results in bad choices. It is a confidence in nothing less than the theory underscoring our entire political order: Our system of government requires that we have faith in the ability of the individual to decide wisely, if only he is fully appraised of the merits of the controversy.”96

While acknowledging the interest that the State has in preserving the institution of marriage, Siegel precisely points out the inefficacy of attaching criminal sanctions to adultery in the following words:
“Even if we accept that a state is trying to foster the interests of specific deceived spouses by its laws criminalizing adultery, it is impossible to believe that a criminal penalty imposed on one of the spouses would somehow benefit a marriage instead of representing the final nail in its coffin. And if deterrence of adultery is the goal, then the state’s failure to arrest and prosecute offenders has long since removed any fear of legal sanction.”97

Deborah L Rhode in her book titled “Adultery” argues that “intermittent idiosyncratic invocations of adultery prohibitions do little to enforce marital vows or reinforce confidence in the rule of law. There are better ways to signal respect for the institution of marriage and better uses of law enforcement than policing private, consensual sexual activity.”98

E Confronting patriarchy

“Norms and ideals arise from the yearning that it is an expression of freedom: it does not have to be this way, it could be otherwise.”99

30 The petitioner urged that (i) The full realisation of the ideal of equality enshrined in Article 14 of the Constitution ought to be the endeavour of this Court; (ii) the operation of Section 497 is a denial of equality to women in marriage; and (iii) the provision is manifestly arbitrary and amounts to a violation of the constitutional guarantee of substantive equality.

The act which constitutes the offence under Section 497 of the Penal Code is a man engaging in sexual intercourse with a woman who is the “wife of another man”. For the offence to arise, the man who engages in sexual intercourse must either know or have reason to believe that the woman is married. Though a man has engaged in sexual intercourse with a woman who is married, the offence of adultery does not come into being where he did so with the consent or connivance of her husband.

These ingredients of Section 497 lay bare several features which bear on the challenge to its validity under Article 14. The fact that the sexual relationship between a man and a woman is consensual is of no significance to the offence, if the ingredients of the offence are established. What the legislature has constituted as a criminal offence is the act of sexual intercourse between a man and a woman who is “the wife of another man”. No offence exists where a man who has a subsisting marital relationship engages in sexual intercourse with a single woman. Though adultery is considered to be an offence relating to marriage, the legislature did not penalise sexual intercourse between a married man and a single woman. Even though the man in such a case has a spouse, this is considered to be of no legal relevance to defining the scope of the offence. That is because the provision proceeds on the notion that the woman is but a chattel; the property of her husband. The fact that he is engaging in a sexual relationship outside marriage is of no consequence to the law. The woman with whom he is in marriage has no voice of her own, no agency to complain. If the woman who is involved in the sexual act is not married, the law treats it with unconcern. The premise of the law is that if a woman is not the property of a married man, her act would not be deemed to be ‘adulterous’, by definition.

31 The essence of the offence is that a man has engaged in an act of sexual intercourse with the wife of another man. But if the man to whom she is married were to consent or even to connive at the sexual relationship, the offence of adultery would not be established. For, in the eyes of law, in such a case it is for the man in the marital relationship to decide whether to agree to his spouse engaging in a sexual act with another. Indeed, even if the two men (the spouse of the woman and the man with whom she engages in a sexual act) were to connive, the offence of adultery would not be made out.

32 Section 497 is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large on the provision.

33 The test of manifest arbitrariness is rooted in Indian jurisprudence. In E P Royappa v State of Tamil Nadu100, Justice Bhagwati characterised equality as a “dynamic construct” which is contrary to arbitrariness:

“85…Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14…”101
(Emphasis supplied)

The Constitution Bench in Shayara Bano v Union of India102 held the practice of Triple Talaq to be unconstitutional. Justice Rohinton Nariman, in his concurring opinion, applied the test of manifest arbitrariness to hold that the practice does not pass constitutional muster:

“87. The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.”103
(Emphasis supplied)

On the application of the test of manifest arbitrariness to invalidate legislation, the learned Judge held thus:

“ 101…there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”104

34 The decision in Shayara Bano, holds that legislation or state action which is manifestly arbitrary would have elements of caprice and irrationality and would be characterized by the lack of an adequately determining principle. An “adequately determining principle” is a principle which is in consonance with constitutional values. With respect to criminal legislation, the principle which determines the “act” that is criminalized as well as the persons who may be held criminally culpable, must be tested on the anvil of constitutionality. The principle must not be determined by majoritarian notions of morality which are at odds with constitutional morality.

In Navtej Singh Johar v Union of India, (“Navtej”)105 Justice Indu Malhotra emphasized the need for a “sound” or “rational principle” underlying a criminal provision:

“ …Section 377 insofar as it criminalises consensual sexual acts between adults in private, is not based on any sound or rational principle…

Further, the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community.”

35 The hypothesis which forms the basis of the law on adultery is the subsistence of a patriarchal order. Section 497 is based on a notion of morality which fails to accord with the values on which the Constitution is founded. The freedoms which the Constitution guarantees inhere in men and women alike. In enacting Section 497, the legislature made an ostensible effort to protect the institution of marriage. ‘Ostensible’ it is, because the provision postulates a notion of marriage which subverts the equality of spouses. Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees. Each of them is entitled to take decisions in accordance with his and her conscience and each must have the ability to pursue the human desire for fulfilment. Section 497 is based on the understanding that marriage submerges the identity of the woman. It is based on a notion of marital subordination. In recognising, accepting and enforcing these notions, Section 497 is inconsistent with the ethos of the Constitution. Section 497 treats a woman as but a possession of her spouse. The essential values on which the Constitution is founded – liberty, dignity and equality – cannot allow such a view of marriage. Section 497 suffers from manifest arbitrariness.

36 While engrafting the provision into Chapter XX of the Penal Code – “of offences relating to marriage” – the legislature has based the offence on an implicit assumption about marriage. The notion which the law propounds and to which it imposes the sanctions of penal law is that the marital tie subordinates the role and position of the woman. In that view of marriage, the woman is bereft of the ability to decide, to make choices and give free expression to her personality. Human sexuality is an essential aspect of identity. Choices in matters of sexuality are reflective of the human desire for expression. Sexuality cannot be construed purely as a physiological attribute. In its associational attributes, it links up with the human desire to be intimate with a person of one’s choice. Sharing of physical intimacies is a reflection of choice. In allowing individuals to make those choices in a consensual sphere, the Constitution acknowledges that even in the most private of zones, the individual must have the ability to make essential decisions. Sexuality cannot be dis-associated from the human personality. For, to be human involves the ability to fulfil sexual desires in the pursuit of happiness. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices. The sexual choices of an individual cannot obviously be imposed on others in society and are premised on a voluntary acceptance by consenting parties. Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having sexual intercourse with another. Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse. The provision is proffered by the legislature as an effort to protect the institution of marriage. But it proceeds on a notion of marriage which is one sided and which denies agency to the woman in a marital tie. The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects. In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage. Equality of rights and entitlements between parties to a marriage is crucial to preserve the values of the Constitution. Section 497 offends that substantive sense of equality and is violative of Article 14.

37 The procedural law which has been enacted in Section 198 of the Code of Criminal Procedure 1973 re-enforces the stereotypes implicit in Section 497. Cognizance of an offence under Chapter XX of the Penal Code can be taken by a Court only upon a complaint of a person aggrieved. In the case of an offence punishable under Section 497, only the husband of the woman is deemed to be aggrieved by the offence. In any event, once the provisions of Section 497 are held to offend the fundamental rights, the procedure engrafted in Section 198 will cease to have any practical relevance.

38 Section 497 amounts to a denial of substantive equality. The decisions in Sowmithri and Revathi espoused a formal notion of equality, which is contrary to the constitutional vision of a just social order. Justness postulates equality. In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.”106 To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens.

The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals.107 The disadvantage must be addressed not by treating a woman as ‘weak’ but by construing her entitlement to an equal citizenship. The former legitimizes patronising attitudes towards women. The latter links true equality to the realisation of dignity. The focus of such an approach is not simply on equal treatment under the law, but rather on the real impact of the legislation.108 Thus, Section 497 has to be examined in the light of existing social structures which enforce the position of a woman as an unequal participant in a marriage.

Catherine Mackinnon implores us to look more critically at the reality of this family sphere, termed ‘‘personal,’’ and view the family as a “crucible of women’s unequal status and subordinate treatment sexually, physically, economically, and civilly.”109 In a social order which has enforced patriarchal notions of sexuality upon women and which treats them as subordinate to their spouses in heterosexual marriages, Section 497 perpetuates an already existing inequality.

39 Facially, the law may be construed to operate as an exemption from criminal sanctions. However, when viewed in the context of a social structure which considers the husband as the owner of the wife’s sexuality, the law perpetuates a deeply entrenched patriarchal order. The true realisation of the substantive content of equality must entail an overhaul of these social structures. When all visible and invisible forms of inequality- social, cultural, economic, political or sexual- are recognised and obliterated; a truly egalitarian existence can be imagined.

F ‘The Good Wife’

Article 15 of the Constitution reads thus:

“15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
(Emphasis supplied)

40 Article 15 prohibits the State from discriminating on grounds only of sex.

The Petitioners contend that (i) Section 497, in so far as it places a husband and wife on a different footing in a marriage perpetuates sex discrimination; (ii) Section 497 is based on the patriarchal conception of the woman as property, entrenches gender stereotypes, and is consequently hit by Article 15.

From a joint reading of Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure, the following propositions emerge:

i. Sexual relations by a married woman with another man outside her marriage without the consent of her husband is criminalized;

ii. In an ‘adulterous relationship’, the man is punished for adultery, while the woman is not (even as an abettor);

iii. Sexual relations by a married man with an unmarried woman are not criminalized;

iv. Section 497 accords primacy to the consent of the husband to determine whether criminality is attached to the man who has consensual sexual relations with the spouse of the former. Consent or willingness of the woman is irrelevant to the offence;

v. A man who has sexual relations with the spouse of another man is relieved of the offence only if her spouse has consented or, even connived; and

vi. Section 497, IPC, read with Section 198, Cr.PC, gives the man the sole right to lodge a complaint and precludes a woman from initiating criminal proceedings.

41 The operation of Section 497, by definition, is confined to the sexual relations of a woman outside her marriage. A man who has sexual intercourse with a married woman without the consent or connivance of her husband, is liable to be prosecuted under the Section. However, a married man may engage in sexual relations outside marriage with a single woman without any repercussion in criminal law. Though granted immunity from prosecution, a woman is forced to consider the prospect of the penal action that will attach upon the individual with whom she engages in a sexual act. To ensure the fidelity of his spouse, the man is given the power to invoke the criminal sanction of the State. In effect, her spouse is empowered to curtail her sexual agency. The consent of the husband serves as the key to the exercise of the sexual agency of his spouse. That the married woman is in a consensual relationship, is of no consequence to the possible prosecution.

A married man may engage in sexual relations with an unmarried woman who is not his wife without the fear of opening his partner to prosecution and without the consent of his spouse. No recourse is provided to a woman against her husband who engages in sexual relations outside marriage. The effect of Section 497 is to allow the sexual agency of a married woman to be wholly dependent on the consent or connivance of her husband. Though Section 497 does not punish a woman engaging in adultery as an abettor, a married man and a married woman are placed on different pedestals in respect to their actions. The effect of Section 497, despite granting immunity from prosecution to the married woman, is to attach a notion of wrongdoing to the exercise of her sexual agency. Despite exempting her from prosecution, the exercise of her sexual agency is contingent on the consent or connivance of the husband. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, Section 497 discriminates between a married man and a married woman to her detriment on the ground of sex. This kind of discrimination is prohibited by the non-discrimination guarantee in Article 15 of the Constitution. Section 497 also places a woman within marriage and the man with whom she shares a sexual relationship outside marriage on a different footing.

42 Section 497 criminalizes the conduct of the man who has sexual intercourse with the wife of another without his consent. It exempts women from criminal liability. Underlying this exemption is the notion that women, being denuded of sexual agency, should be afforded the ‘protection’ of the law. In criminalizing the accused who engages in the sexual relationship, the law perpetuates a gender stereotype that men, possessing sexual agency are the seducers, and that women, as passive beings devoid of sexual agency, are the seduced. The notion that a woman is ‘submissive’, or worse still ‘naïve’ has no legitimacy in the discourse of a liberal constitution. It is deeply offensive to equality and destructive of the dignity of the woman. On this stereotype, Section 497 criminalizes only the accused man.

43 Pertinent to the present enquiry, is that the provision allows only the husband to initiate a prosecution for adultery. The consent or connivance of the husband precludes prosecution. If a husband consents, his spouse is effectively granted permission to exercise her sexual agency with another individual. This guarantees a degree of control to the husband over the sexual agency of his spouse. As a relic of Victorian morality, this control over the sexual agency of the spouse, views the wife as the property of the husband. Fidelity of the woman, and the husband’s control over it, is seen as maintaining the ‘property’ interest of a husband in his wife.110 In this view, a woman is confounded with things that can be possessed. In construing the spouse as a passive or inanimate object, the law on adultery seeks to punish a person who attempts theft on the property of the husband. Coontz and Henderson write that the stabilization of property rights and the desire to pass on one’s property to legitimate heirs, were what motivated men to restrict the sexual behavior of their wives.111

44 Underlying Section 497 is a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible. In condemning the sexual agency of the woman, only the husband, as the ‘aggrieved’ party is given the right to initiate prosecution. The proceedings once initiated, would be geared against the person who committed an act of ‘theft’ or ‘trespass’ upon his spouse. Sexual relations by a man with another man’s wife is therefore considered as theft of the husband’s property. Ensuring a man’s control over the sexuality of his wife was the true purpose of Section 497.

Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption that a woman contracts away her sexual agency when entering a marriage. That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. Such a notion has no place in the constitutional order. Sexual autonomy constitutes an inviolable core of the dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is a primacy of choice and the freedom to determine one’s actions. Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values.

45 A provision of law must not be viewed as operating in isolation from the social, political, historical and cultural contexts in which it operates. In its operation, law “permeates and is inseparable from everyday living and knowing, and it plays an important role in shaping (legal) consciousness.”112 A contextual reading of the law shows that it influences social practices, and makes “asymmetries of power seem, if not invisible, natural and benign”.113 Section 497 has a significant social impact on the sexual agency of women. It builds on existing gender stereotypes and bias and further perpetuates them. Cultural stereotypes are more forgiving of a man engaging in sexual relations than a woman. Women then are expected to be chaste before and faithful during marriage. In restricting the sexual agency of women, Section 497 gives legal recognition to socially discriminatory and gender-based norms. Sexual relations for a woman were legally and socially permissible when it was within her marriage. Women who committed adultery or non-marital sex were labeled immoral, shameful, and were criminally condemned.

In Anuj Garg v Hotel Association of India,114 this Court struck down Section 30 of the Punjab Excise Act, 1914 which prohibited the employment of women in premises where liquor or other intoxicating drugs were consumed by the public. Holding that the law suffered from “incurable fixations of stereotype morality and conception of sexual role”, the Court took into account “traditional cultural norms as also the state of general ambience in the society” and held that “no law in its ultimate effect should end up perpetuating the oppression of women.”

In Navtej, one of us (Chandrachud J.) held thus:

“A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate. Such a discrimination will be in violation of the constitutional guarantee against discrimination in Article 15(1).”

46 Section 497 rests on and perpetuates stereotypes about women and sexual fidelity. In curtailing the sexual agency of women, it exacts sexual fidelity from women as the norm. It perpetuates the notion that a woman is passive and incapable of exercising sexual freedom. In doing so, it offers her ‘protection’ from prosecution. Section 497 denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage. The provision is grounded in and has a deep social effect on how society perceives the sexual agency of women. In reinforcing the patriarchal structure which demands her controlled sexuality, Section 497 purports to serve as a provision envisaged for the protection of the sanctity of marriage. In the context of a constitutional vision characterized by the struggle to break through the shackles of gender stereotypes and guarantee an equal citizenship, Section 497 entrenches stereotypes and existing structures of discrimination and has no place in a constitutional order.

F.1 The entrapping cage

47 Section 497 exempts a woman from being punished as an abettor. Underlying this exemption is the notion that a woman is the victim of being seduced into a sexual relationship with a person who is not her husband. In assuming that the woman has no sexual agency, the exemption seeks to be justified on the ground of being a provision that is beneficial to women and protected under Article 15(3) of the Constitution. This is contrary to the remedy which Article 15(3) sought to embody. In Government of A P v P B Vijayakumar,115 a two judge Bench of this Court dealt with a challenge to sub- rule (2) of Rule 22-A of the Andhra Pradesh State and Subordinate Service Rules, which gave women a preference in the matter of direct recruitment. Speaking for the Court, Justice Sujata V Manohar held thus:

“7. The insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women…”116

In Independent Thought v Union of India,117 Justice Madan B Lokur, speaking for a two judge Bench of this Court, adverted to the drafting history of Article 15(3) and held thus:

“55. The response given by Dr. Ambedkar suggests that he certainly favoured special provisions for women and children with a view to integrate them into society and to take them out of patriarchal control…118

56. What clearly emerges from this discussion is that Article 9(2) of the draft Constitution [now Article 15(3)] was intended to discriminate in favour of women and children – a form of affirmative action to their advantage.”119

48 Article 15(3) encapsulates the notion of ‘protective discrimination’. The constitutional guarantee in Article 15(3) cannot be employed in a manner that entrenches paternalistic notions of ‘protection’. This latter view of protection only serves to place women in a cage. Article 15(3) does not exist in isolation. Articles 14 to 18, being constituents of a single code on equality, supplement each other and incorporate a non-discrimination principle. Neither Article 15(1), nor Article 15(3) allow discrimination against women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15(3). In exempting women from criminal prosecution, Section 497 implies that a woman has no sexual agency and that she was ‘seduced’ into a sexual relationship. Given the presumed lack of sexual agency, criminal exemption is then granted to the woman in order to ‘protect’ her. The ‘protection’ afforded to women under Section 497 highlights the lack of sexual agency that the section imputes to a woman. Article 15(3) when read with the other Articles in Part III, serves as a powerful remedy to remedy the discrimination and prejudice faced by women for centuries. Article 15(3) as an enabling provision is intended to bring out substantive equality in the fullest sense. Dignity and autonomy are crucial to substantive equality. Hence, Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women.

G Denuding identity – women as sexual property

49 Charles Jean Marie wrote in 1911120 about the central forms of adultery as an offence. The criminalisation of adultery came at a social cost: of disregarding the agency of a woman as a sentient being.

“In all legislations the married woman is more or less openly considered as the property of the husband and is very often confounded, absolutely confounded, with things possessed. To use her, therefore, without the authority of her owner is theft…But adultery is not a common theft. An object, an inert possession, are passive things; their owner may well punish the thief who has taken them, but him only. In adultery, the object of larceny, the wife, is a sentient and thinking being- that is to say, an accomplice in the attempt on her husband’s property in her own person; moreover he generally has her in his keeping…”

The law on adultery is but a codified rule of patriarchy. Patriarchy has permeated the lives of women for centuries. Ostensibly, society has two sets of standards of morality for judging sexual behaviour.121 One set for its female members and another for males.122 Society ascribes impossible virtues to a woman and confines her to a narrow sphere of behaviour by an expectation of conformity.123 Raising a woman to a pedestal is one part of the endeavour. The second part is all about confining her to a space. The boundaries of that space are defined by what a woman should or should not be. A society which perceives women as pure and an embodiment of virtue has no qualms of subjecting them to virulent attack: to rape, honour killings, sex-determination and infanticide. As an embodiment of virtue, society expects the women to be a mute spectator to and even accepting of egregious discrimination within the home. This is part of the process of raising women to a pedestal conditioned by male notions of what is right and what is wrong for a woman. The notion that women, who are equally entitled to the protections of the Constitution as their male counterparts, may be treated as objects capable of being possessed, is an exercise of subjugation and inflicting indignity. Anachronistic conceptions of ‘chastity’ and ‘honour’ have dictated the social and cultural lives of women, depriving them of the guarantees of dignity and privacy, contained in the Constitution.

50 The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution.

The opinion delivered on behalf of four judges in K S Puttaswamy v Union of India124 has recognised the dangers of the “use of privacy as a veneer for patriarchal domination and abuse of women.” On the delicate balance between the competing interests of protecting privacy as well dignity of women in the domestic sphere, the Court held:

“The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.”

51 In “Seeing like a Feminist”, Nivedita Menon has recognized the patriarchal family as the “basis for the secondary status of women in society.”125 Menon notes that ‘the personal is political’.126 Her scholarly work implores us to recognise spaces which may be considered personal such as the bedroom and kitchen. These spaces are immersed in power relations, but with ramifications for the public sphere.127

Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage.128 When it shifts to the ‘public’ as opposed to the ‘private’, the misogyny becomes even more pronounced.129 Section 497 embodies this. By the operation of the provision, women’s sexuality is sought to be controlled in a number of ways. First, the husband and he alone is enabled to prosecute the man with whom his wife has sexual relations. Even in cases where the relationship is based on the consent of the woman, the law treats it as an offence, denying a woman who has voluntarily entered into a consensual relationship of her sexual agency. Second, such a relationship would be beyond the reach of penal law if her husband consents to it. The second condition is a telling reflection of the patriarchal assumption underlying the criminal provision: that the husband is the owner of the wife’s sexual agency.

52 In remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. The Court is merely interpreting the text of the Constitution to re-state what is already set in ink- women are equal citizens of this nation, entitled to the protections of the Constitution. Any legislation which results in the denial of these Constitutional guarantees to women, cannot pass the test of constitutionality.

Patriarchy and paternalism are the underpinnings of Section 497. It needs no iteration that misogyny and patriarchal notions of sexual control find no place in a constitutional order which has recognised dignity as intrinsic to a person, autonomy being an essential component of this right. The operation of Section 497 denotes that ‘adulterous women’ virtually exercise no agency; or at least not enough agency to make them criminally liable.130 They are constructed as victims. As victims, they are to be protected by being exempt from sanctions of a criminal nature.131 Not only is there a denial of sexual agency, women are also not seen to be harmed by the offence.132 Thus, the provision is not simply about protecting the sanctity of the marital relationship. It is all about protecting a husband’s interest in his “exclusive access to his wife’s sexuality”.133

53 Section 497 chains the woman to antediluvian notions of sexuality. Chief Justice Dipak Misra in Navtej emphasised the importance of sexual autonomy as a facet of individual liberty, thus protected under Article 21 of the Constitution:

“The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty. When the liberty of even a single person of the society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space, then the signature of life melts and living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged.”

In Navtej, one of us (Chandrachud J.) held that the recognition of the autonomy of an individual is an acknowledgement of the State’s respect for the capacity of the individual to make individual choices:

“The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices. The right to privacy may be construed to signify that not only are certain acts no longer immoral, but that there also exists an affirmative moral right to do them.”

To characterise a woman as a passive object, denuded of agency, is a denial of autonomy. The same judgment in Navtej has recognized sexual choices as an essential attribute of autonomy, intimately connected to the self-respect of the individual:

“In order to understand how sexual choices are an essential attribute of autonomy, it is useful to refer to John Rawls’ theory on social contract. Rawls’ conception of the ‘Original Position’ serves as a constructive model to illustrate the notion of choice behind a “partial veil of ignorance.” Persons behind the veil are assumed to be rational and mutually disinterested individuals, unaware of their positions in society. The strategy employed by Rawls is to focus on a category of goods which an individual would desire irrespective of what individuals’ conception of ‘good’ might be. These neutrally desirable goods are described by Rawls as ‘primary social goods’ and may be listed as rights, liberties, powers, opportunities, income, wealth, and the constituents of self- respect. Rawls’s conception of self-respect, as a primary human good, is intimately connected to the idea of autonomy. Self-respect is founded on an individual’s ability to exercise her native capacities in a competent manner.”
(Emphasis supplied)

G.1 Exacting fidelity: the intimacies of marriage

54 Marriage as a social institution has undergone changes. Propelled by access to education and by economic and social progress, women have found greater freedom to assert their choices and preferences. The law must also reflect their status as equals in a marriage, entitled to the constitutional guarantees of privacy and dignity. The opinion delivered on behalf of four judges in Puttaswamy held thus:
“130…As society evolves, so must constitutional doctrine. The institutions which the Constitution has created must adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above all, constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.”134

In Navtej, Justice Rohinton Nariman countered the assertion that the Court must “not indulge in taking upon itself the guardianship of changing societal mores” by holding thus:

“…The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of ‘discrete and insular’ minorities.One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.” (Emphasis supplied)

55 Section 497 seeks the preservation of a construct of marriage in which female fidelity is enforced by the letter of the law and by the coercive authority of the state. Such a conception goes against the spirit of the rights-based jurisprudence of this Court, which seeks to protect the dignity of an individual and her “intimate personal choices”. It cannot be held that these rights cease to exist once the woman enters into a marriage.

56 The identity of the woman must be as an ‘individual in her own right’. In that sense, her identity does not get submerged as a result of her marriage. Section 497 lays down the norm that the identity of a married woman is but as the wife of her spouse. Underlying the norm is a notion of control over and subjugation of the woman. Such notions cannot withstand scrutiny under a liberal constitution. Chief Justice Dipak Misra in Navtej has drawn on the interrelationship between ‘identity’ and ‘autonomy’:

“…Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society.”

This Court in Puttaswamy has elucidated that privacy is the entitlement of every individual, with no distinction to be made on the basis of the individual’s position in society.

“271.Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilization. Then again, it is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.”135

57 It would be useful to refer to decisions of this Court which have emphasised on the freedoms of individuals with respect to choices in relationships. In Navtej, Chief Justice Misra highlighted the indignity suffered by an individual when “acts within their personal sphere” are criminalised on the basis of regressive social attitudes:

“An individual’s choice to engage in certain acts within their private sphere has been restricted by criminalising the same on account of the age old social perception. To harness such an essential decision, which defines the individualism of a person, by tainting it with criminality would violate the individual’s right to dignity by reducing it to mere letters without any spirit.”

The Chief Justice observed that the “organisation of intimate relations” between “consenting adults” is a matter of complete personal choice and characterised the “private protective sphere and realm of individual choice and autonomy” as a personal right:

“It is true that the principle of choice can never be absolute under a liberal Constitution and the law restricts one individual‘s choice to prevent harm or injury to others. However, the organisation of intimate relations is a matter of complete personal choice especially between consenting adults. It is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. Such progressive proclivity is rooted in the constitutional structure and is an inextricable part of human nature.”
(Emphasis supplied).

In Shakti Vahini, this Court has recognised the right to choose a partner as a fundamental right under Articles 19 and 21 of the Constitution. In Shafin Jahan, “intimate personal choices” were held to be a protected sphere, with one of us (Chandrachud J) stating:

“88.The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual.

Intimacies of marriage lie within a core zone of privacy, which is inviolable.”

58 In Navtej, one of us (Chandrachud J) held that the right to sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity. The application of Section 497 is a blatant violation of these enunciated rights. Will a trial to prove adultery lead the wife to tender proof of her fidelity? In Navtej, the principle was elucidated thus:
“In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters.”

In so far as two individuals engage in acts based on consent, the law cannot intervene. Any intrusion in this private sphere would amount to deprivation of autonomy and sexual agency, which every individual is imbued with.

In Puttaswamy, it was recognised that a life of dignity entails that the “inner recesses of the human personality” be secured from “unwanted intrusion”:

“127.The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution.”136

59 In criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse. In doing that, the statutory provision fails to meet the touchstone of Article 21. Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality. Equality is subverted by lending the sanctions of the penal law to a gender biased approach to the relationship of a man and a woman. The statute confounds paternalism as an instrument for protecting marital stability. It defines the sanctity of marriage in terms of a hierarchical ordering which is skewed against the woman. The law gives unequal voices to partners in a relationship.

This judgment has dwelt on the importance of sexual autonomy as a value which is integral to life and personal liberty under Article 21. Individuals in a relationship, whether within or outside marriage, have a legitimate expectation that each will provide to the other the same element of companionship and respect for choices. Respect for sexual autonomy, it must be emphasized is founded on the equality between spouses and partners and the recognition by each of them of the dignity of the other. Control over sexuality attaches to the human element in each individual. Marriage – whether it be a sacrament or contract – does not result in ceding of the autonomy of one spouse to another.

60 Recognition of sexual autonomy as inhering in each individual and of the elements of privacy and dignity have a bearing on the role of the state in regulating the conditions and consequences of marital relationships. There is a fundamental reason which militates against criminalization of adultery. Its genesis lies in the fact that criminalizing an act is not a valid constitutional response to a sexual relationship outside the fold of marriage. Adultery in the course of a subsisting marital relationship may, and very often does question the commitment of the spouse to the relationship. In many cases, a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital relationship. But in other cases, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie. All too often, spouses who have drifted apart irrevocably may be compelled for reasons personal to them to continue with the veneer of a marriage which has ended for all intents and purposes. The interminably long delay of the law in the resolution of matrimonial conflicts is an aspect which cannot be ignored. The realities of human existence are too complex to place them in closed categories of right and wrong and to subject all that is considered wrong with the sanctions of penal law. Just as all conduct which is not criminal may not necessarily be ethically just, all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing.

61 The state undoubtedly has a legitimate interest in regulating many aspects of marriage. That is the foundation on which the state does regulate rights, entitlements and duties, primarily bearing on its civil nature. Breach by one of the spouses of a legal norm may constitute a ground for dissolution or annulment. When the state enacts and enforces such legislation, it does so on the postulate that marriage as a social institution has a significant bearing on the social fabric. But in doing so, the state is equally governed by the norms of a liberal Constitution which emphasise dignity, equality and liberty as its cardinal values. The legitimate aims of the state may, it must be recognized, extend to imposing penal sanctions for certain acts within the framework of marriage. Physical and emotional abuse and domestic violence are illustrations of the need for legislative intervention. The Indian state has legitimately intervened in other situations such as by enacting anti dowry legislation or by creating offences dealing with the harassment of women for dowry within a marital relationship. The reason why this constitutes a legitimate recourse to the sovereign authority of the state to criminalize conduct is because the acts which the state proscribes are deleterious to human dignity. In criminalizing certain types of wrongdoing against women, the state intervenes to protect the fundamental rights of every woman to live with dignity. Consequently, it is important to underscore that this judgment does not question the authority and even the duty of the state to protect the fundamental rights of women from being trampled upon in unequal societal structures. Adultery as an offence does not fit that paradigm. In criminalizing certain acts, Section 497 has proceeded on a hypothesis which is deeply offensive to the dignity of women. It is grounded in paternalism, solicitous of patriarchal values and subjugates the woman to a position where the law disregards her sexuality. The sexuality of a woman is part of her inviolable core. Neither the state nor the institution of marriage can disparage it. By reducing the woman to the status of a victim and ignoring her needs, the provision penalizing adultery disregards something which is basic to human identity. Sexuality is a definitive expression of identity. Autonomy over one’s sexuality has been central to human urges down through the ages. It has a constitutional foundation as intrinsic to autonomy. It is in this view of the matter that we have concluded that Section 497 is violative of the fundamental rights to equality and liberty as indeed, the right to pursue a meaningful life within the fold of Articles 14 and 21.

62 The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. To consider a free citizen as the property of another is an anathema to the ideal of dignity. Section 497 denies the individual identity of a married woman, based on age-old societal stereotypes which characterised women as the property of their spouse. It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’.

H Towards transformative justice

63 Constitutional values infuse the letter of the law with meaning. True to its transformative vision, the text of the Constitution has, time and again, been interpreted to challenge hegemonic structures of power and secure the values of dignity and equality for its citizens. One of the most significant of the battles for equal citizenship in the country has been fought by women. Feminists have overcome seemingly insurmountable barriers to ensure a more egalitarian existence for future generations. However, the quest for equality continues. While there has been a considerable degree of reform in the formal legal system, there is an aspect of women’s lives where their subordination has historically been considered beyond reproach or remedy. That aspect is the family. Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence.

64 The law on adultery, conceived in Victorian morality, considers a married woman the possession of her husband: a passive entity, bereft of agency to determine her course of life. The provision seeks to only redress perceived harm caused to the husband. This notion is grounded in stereotypes about permissible actions in a marriage and the passivity of women. Fidelity is only expected of the female spouse. This anachronistic conception of both, a woman who has entered into marriage as well as the institution of marriage itself, is antithetical to constitutional values of equality, dignity and autonomy.

In enforcing the fundamental right to equality, this Court has evolved a test of manifest arbitrariness to be employed as a check against state action or legislation which has elements of caprice, irrationality or lacks an adequate determining principle. The principle on which Section 497 rests is the preservation of the sexual exclusivity of a married woman – for the benefit of her husband, the owner of her sexuality. Significantly, the criminal provision exempts from sanction if the sexual act was with the consent and connivance of the husband. The patriarchal underpinnings of Section 497 render the provision manifestly arbitrary.

65 The constitutional guarantee of equality rings hollow when eviscerated of its substantive content. To construe Section 497 in a vacuum (as did Sowmithri Vishnu) or in formalistic terms (as did Revathi) is a refusal to recognise and address the subjugation that women have suffered as a consequence of the patriarchal order. Section 497 is a denial of substantive equality in that it re- inforces the notion that women are unequal participants in a marriage; incapable of freely consenting to a sexual act in a legal order which regards them as the sexual property of their spouse.

66 This Court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right. Section 497 denudes a married woman of her agency and identity, employing the force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality:

“Infidelity was born on the day that natural flows of sexual desire were bound into the legal and formal permanence of marriage; in the process of ensuring male control over progeny and property, women were chained within the fetters of fidelity.”137

Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality.

67 Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster.

We hold and declare that:

1) Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary. Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society. Section 497 violates Article 14 of the Constitution;

2) Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the Constitution;

3) Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution; and

4) Section 497 is unconstitutional.

The decisions in Sowmithri Vishnu and Revathi are overruled.

……………………………………..J
[Dr Dhananjaya Y Chandrachud]

New Delhi;
September 27, 2018.

FOOTNOTE

1 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996) at page 40
2 Ibid at page 41
3 Ibid
4 Ibid
5 Patricia Williams, The Alchemy of Race and Rights, Cambridge: Harvard University Press (1991)
6 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996) at page 41
7 Ibid
8 Gayatri Spivak, The Post Colonial Critic: Interviews, Strategies, Dialogies, Routledge (1990)
9 1954 SCR 930
10 AIR 1951 Bom 470
11 (2001) 4 SCC 139
12 Ibid. at page 164
13 1985 Supp SCC 137
14 Ibid. at page 141
15 Ibid. at page 142
16 Ibid. at page 144
17 (1988) 2 SCC 72
18 Ibid. at page 76
19 Nathaniel Hawthorne, The Scarlet Letter, Bantam Books (1850), at page 59
20 See David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008)
21 Ibid
22 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 10
23 Ibid, at page 11
24 Faramerz Dabhoiwala, The Origins of Sex: A History of the First Sexual Revolution (2012), at page 5
25 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30
26 Vern Bullough, Medieval Concepts of Adultery, at page 7
27 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 27
28 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, Vol. 30, Journal of Family Law (1991), at page 46
29 Vern Bullough, Medieval Concepts of Adultery, at page 7
30 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 27
31 Jeremy D. Weinstein, Adultery, Law, and the State: A History, Vol. 38, Hastings Law Journal (1986), at page 202;
R. Huebner, A History of Germanic Private Law (F. Philbrick trans. 1918)
32 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 6
33 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30
34 Ibid.
35 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 30
36 James R. Mellow, Hawthorne’s Divided Genius, The Wilson Quarterly (1982)
37 Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996).
38 Keith Thomas, The Puritans and Adultery: The Act of 1650 Reconsidered, in Puritans and Revolutionaries: Essays in Seventeenth-Century History Presented to Christopher Hill (Donald Pennington, Keith Thomas, eds.), at page 281
39 Charles E. Torcia, Wharton’s Criminal Law, Section 218, (1994) at page 528
40 J. E. Loftis, Congreve’s Way of the World and Popular Criminal Literature, Studies in English Literature, 1500 – 1900 36(3) (1996), at page 293
41 Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (2009), at page 143
42 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 28
43 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at page 191-192
44 (1707) Kel. 119
45 William Blackstone, Commentaries on the Laws of England. Vol. I (1765), at pages 442 445
46 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161
47 R v. Mawgridge, (1707) Kel. 119
48 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161
49 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at pages 64-65
50 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review (2016), at page 52
51 Ibid.
52 Macaulay’s Draft Penal Code (1837), Note Q
53 Second Report on the Indian Penal Code (1847), at pages 134-35, cited from, Law Commission of India, Forty- second Report: Indian Penal Code, at page 365
54 A Penal Code prepared by The Indian Law Commissioners (1838), The Second Report on the Indian Penal Code, at page 74
55 Law Commission of India, 42nd Report: Indian Penal Code (1971), at page 326
56 Law Commission of India, 156th Report: Indian Penal Code (1997) at page 172
57 Report of the Committee on Reforms of Criminal Justice System (2003), at page 190
58 Ibid.
59 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review (2016), at page 63
60 Brenda Cossman and Ratna Kapur, Subversive Sites: Feminist Engagements with Law in India (1996)
61 Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930
62 The ‘Woman Question’ was one of the great issues that occupied the middle of the nineteenth century, namely the social purpose of women. It is used as a tool to enquire into the status of women in the law and how they interact with and are affected by it; See Katherine T. Bartlett, Feminist Legal Methods, Harvard Law Review (1990)
63 U N Working Group on Women’s Human Rights: Report (18 October, 2012), available at: http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E
64Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do
65 Firstpost, South Korean court abolishes law that made adultery illegal, (February 26, 2015), available at https://www.firstpost.com/world/south-korean-court-abolishes-law-saying-adultery-is-illegal-2122935.html
66 Opinion of Justice Park Han-Chul, Justice Lee Jin-Sung, Justice Kim Chang-Jong, Justice Seo Ki-Seog and Justice Cho Yong-Ho (Adultery is Unconstitutional)
67 Article 10 of the South Korean Constitution “All citizens are assured of human worth and dignity and have the right
to pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human
rights of individuals.”
68 Supra, note 64, Part V- A (3)(1) (‘Change in Public’s Legal Awareness’ under the head of ‘Appropriateness of
Means and Least Restrictiveness’)
69 Supra, note 64, Part V- A (3)(3) (‘Effectiveness of Criminal Punishment’, under the head of ‘Appropriateness of
Means and Least Restrictiveness’)
70 Ibid.
71 Supra, note 64, Part V- A (5) (‘Balance of Interests & Conclusion’)
72 Constitutional Petitions Nos. 13 /05 /& 05 /06 in Law Advocacy for Women in Uganda v. Attorney General of Uganda, (2007) UGCC 1 (5 April, 2007), available at
https://ulii.org/ug/judgment/constitutional-court/2007/1
73 Reuters: ‘Uganda scraps “sexist” adultery law’, (April 5, 2007), available at
https://www.reuters.com/article/us-uganda-adultery/uganda-scraps-sexist-adultery-law-idUSL0510814320070405
74 Constitutional Petitions Nos. 13 /05 /& 05 /06 in Law Advocacy for Women in Uganda v. Attorney General of Uganda, [2007] UGCC 1 (5 April, 2007), available at
https://ulii.org/ug/judgment/constitutional-court/2007/1
75 Ibid.
76 DE v RH, [2015] ZACC 18
77 Ibid, at para 34
78 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 45
79 Ibid, at page 46
80 Cleveland Board of Education v. LaFleur, 414 U.S. 623 (1973)
81 Griswold, 381 U.S. 1 (1967)
82 Carey, v. Population Serv. Int’l, 431 U.S. 678
83 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 70
84 Hardwick, 478 U.S.205
85 Ibid, at page 206
86 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 74
87 Ibid, at page 77
88 Ibid, at, page 78
89 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)
90 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 78
91 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 82
92 Thornburgh v. American College of Obstetricians and Gynaecologists, 476 U.S. 747 (1986)
93 Ibid, at Page 777
94 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) at page 85
95 Ibid, at Page 86
96 Eisenstadt v. Baird , 405 U.S. 438, 457 (1972)
97 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 89
98 Deborah Rhode, Adultery: Infidelity and the Law, (Harvard University Press, 2016)
99 Iris Marion Young, Justice and the Politics of Difference, Princeton University Press, 1990
100 (1974) 4 SCC 3
101 Ibid. at page 38
102 (2017) 9 SCC 1
103 Ibid. at pages 91-92
104 Ibid. at page 99
105 Writ Petition (Criminal) No. 76 OF 2016
106 Kathy Lahey, Feminist Theories of (In)equality, in Equality and Judicial Nuetrality (S.Martin and K.Mahoney (eds.) (1987)
107 Ratna Kapur On Woman, Equality and the Constitution: Through the Looking Glass of Feminism in Gender and Politics in India (Nivedita Menon ed.) (1993)
108 Maureen Maloney, An Analysis of Direct Taxes in India: A Feminist Perspective, Journal of the Indian Law Institute (1988)
109 Catherine A Mackinnon, Sex equality under the Constitution of India: Problems, prospects, and ‘personal laws’, Oxford University Press and New York University School of Law (2006)
110 Phyllis Coleman, Who’s Been Sleeping in My Bed? You and Me, and the State Makes Three, Vol. 24, Indian Law Review (1991)
111 Women’s Work, Men’s Property: The Origins of Gender and Class (S Coontz and P Henderson eds.) (1986)
112 Rosemary Coombe, Is There a Cultural Studies of Law?, in A Companion to Cultural Studies, Toby Miller (ed.), Oxford, (2001)
113 Austin Sarat, Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship, Yale Journal of Law & the Humanities, (2001), at page 19
114 (2008) 3 SCC 1
115 (1995) 4 SCC 520
116 Ibid. at page 525
117 (2017) 10 SCC 800
118 Ibid. at page 837
119 Ibid. at page 837
120 Charles Jean Marie Letorneau, The Evolution of Marriage (2011)
121 Nandita Haksar, Dominance, Suppression and the Law in Women and the Law: Contemporary Problems (Lotika Sarkar and B. Sivaramayya eds.), Vikas Publishing House (1994)
122 Ibid
123 Ibid
124 (2017) 10 SCC 1
125 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35
126 Ibid.
127 Ibid.
128 Ibid.
129 Ibid.
130 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996) at page 119
131 Ibid.
132 Ibid.
133 Ibid. at page 120
135 Ibid. at page 484
136 Ibid. at page 413
137 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 135; quoting Archana Verma, Stree Vimarsh Ke Mahotsav (2010)

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 194 OF 2017

Joseph Shine …Petitioner

Versus

Union of India …Respondent

J U D G M E N T

INDU MALHOTRA, J.

1. The present Writ Petition has been filed to challenge the constitutional validity of Section 497 of the Indian Penal Code (hereinafter referred to as I.P.C.) which makes ‘adultery’ a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. Section 497 reads as under:

“497. Adultery — 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.”

2. The Petitioner has also challenged Section 198(2) of the Code of Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C”). Section 198(2) reads as under:

“For the purpose of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code.

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”

3. The word ‘adultery’1 derives its origin from the French word ‘avoutre‘, which has evolved from the Latin verb ‘adulterium‘ which means “to corrupt.” The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage, was termed as ‘adultery’. This definition of adultery emanated from the historical context of Victorian morality, where a woman considered to be the ‘property’ of her husband; and the offence was committed only by the adulterous man. The adulterous woman could not be proceeded against as an ‘abettor’, even though the relationship was consensual.

4. THE DOCTRINE OF COVERTURE

Adultery, as an offence, was not a crime under Common Law, in England. It was punishable by the ecclesiastical courts which exercised jurisdiction over sacramental matters that included marriage, separation, legitimacy, succession to personal property, etc.2

In England, coverture determined the rights of married women, under Common Law. A ‘feme sole‘ transformed into a ‘feme covert‘ after marriage. ‘Feme covert‘ was based on the doctrine of ‘Unity of Persons’ – i.e. the husband and wife were a single legal identity. This was based on notions of biblical morality that a husband and wife were ‘one in flesh and blood’. The effect of ‘coverture’ was that a married woman’s legal rights were subsumed by that of her husband. A married woman could not own property, execute legal documents, enter into a contract, or obtain an education against her husband’s wishes, or retain a salary for herself.3

The principle of ‘coverture’ was described in William Blackstone’s Commentaries on the Laws of England as follows:4

” By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquires by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all contracts made between husband and wife, when single, are voided by the intermarriage.”
(Emphasis supplied)

On this basis, a wife did not have an individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed to testify either for, or against each other.

Medieval legal treatises, such as the Bracton5, described the nature of ‘coverture’ and its impact on married women’s legal actions. Bracton (supra) states that husbands wielded power over their wives, being their ‘rulers’ and ‘custodians of their property’. The institution of marriage came under the jurisdiction of ecclesiastical courts. It made wives live in the shadow of their
husbands, virtually ‘invisible’ to the law.

The principle of coverture subsisted throughout the marriage of the couple. It was not possible to obtain a divorce through civil courts, which refused to invade into the jurisdiction of the church. Adultery was the only ground available to obtain divorce.

The origin of adultery under Common Law was discussed in the English case Pritchard v. Pritchard and Sims6, wherein it was held that:

“In 1857, when marriage in England was still a union for life which could be broken only by private Act of Parliament, under the common law, three distinct causes of action available to a husband whose rights in his wife were violated by a third party, who enticed her away, or who harboured her or who committed adultery with her…In the action for adultery, known as criminal conversation, which dates from before the time of BRACTON, and consequently lay originally in trespass, the act of adultery itself was the cause of action and the damages punitive at large. It lay whether the adultery resulted in the husband‘s losing his wife‘s society and services or not. All three causes of action were based on the recognition accorded by the common law to the husband‘s propriety which would have been hers had she been feme sole.”
(Emphasis supplied)

In the Victorian Era7, women were denied the exercise of basic rights and liberties, and had little autonomy over their choices. Their status was pari materia with that of land, cattle and crop; forming a part of the ‘estate’ of their fathers as daughters prior to marriage, and as the ‘estate’ of their husband post-marriage.8

Lord Wilson in his Speech titled “Out of his shadow: The long struggle of wives under English Law”9 speaks of the plight of women during this era:

“8. An allied consequence of the wife‘s coverture was that she was not legally able to enter into a contract. Apart from anything else, she had no property against which to enforce any order against her for payment under a contract; so it was only a small step for the law to conclude that she did not have the ability to enter into the contract in the first place. If, however, the wife went into a shop and ordered goods, say of food or clothing, which the law regarded as necessary for the household, the law presumed, unless the husband proved to the contrary, that she had entered into the contract as his authorised agent. So the shopkeeper could sue him for the price if the wife had obtained the goods on credit.

9. In the seventeenth century there was a development in the law relating to this so-called agency of necessity. It was an attempt to serve the needs of wives whose husbands had deserted them. The law began to say that, if a deserted wife had not committed adultery, she could buy from the shopkeeper all such goods as were necessary for her and, even if (as was highly likely) the husband had not authorised her to buy them, he was liable to pay the shopkeeper for them. But the shopkeeper had a problem. How was he to know whether the wife at the counter had been deserted and had not committed adultery? Sometimes a husband even placed a notice in the local newspaper to the effect, true or untrue, that his wife had deserted him or had committed adultery and that accordingly he would not be liable to pay for her purchase of necessaries.….”

The remnants of ‘coverture’ sowed the seeds for the introduction of ‘Criminal Conversation’ as an actionable tort by a husband against his wife’s paramour in England.

Criminal Conversation as a tort, gave a married man the right to claim damages against the man who had entered into a sexual relationship with his wife. The consent of the wife to the relationship, did not affect the entitlement of her husband to sue.

The legal position of matrimonial wrongs underwent a significant change with the passing of the Matrimonial Causes Act, 1857 in England.10 Section 59 of this Act abolished the Common Law action for “criminal conversation”.11 Section 33 empowered the Courts to award damages to the husband of the paramour for adultery.12 The claim for damages for adultery was to be tried on the same principles, and in the same manner, as actions for ‘criminal conversation’ which were formerly tried at Common Law.13

The status of the wife, however, even after the passing of the Matrimonial Causes Act, 1857 remained as ‘property of the husband’, since women had no right to sue either their adulterous husband or his paramour.

Gender equality between the spouses came to be recognised in some measure in England, with the passing of the Matrimonial Causes Act, 1923 which made ‘adultery’ a ground for divorce, available to both spouses, instead of only the husband of the adultrous wife. The right of the husband to claim damages from his wife’s paramour came to be abolished by The Law Reform (Miscellaneous Provisions) Act of 1970 on January 1, 1971. In England, adultery has always been a civil wrong, and not a penal offence.

5. SECTION 497 – HISTORICAL BACKGROUND

5.1. The Indo-Brahmanic traditions prevalent in India mandated the chastity of a woman to be regarded as her prime virtue, to be closely guarded to ensure the purity of the male bloodline. The objective was not only to protect the bodily integrity of the woman, but to ensure that the husband retains control over her sexuality, confirming her ‘purity’ in order to ensure the purity of his own bloodline.14

5.2. The first draft of the I.P.C. released by the Law Commission of India in 1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence.15
The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, who were of the opinion that the existing remedy for ‘adultery’ under Common Law would be insufficient for the ‘poor natives’, who would have no recourse against the paramour of their wife.16

5.3. The debate that took place in order to determine whether ‘adultery’ should be a criminal offence in India was recorded in ‘Note Q’ of ‘A Penal Code prepared by the Indian Law Commissioners‘ 17. The existing laws18 for the punishment of adultery were considered to be altogether inefficacious for preventing the injured husband from taking matters into his own hands.
The Law Commissioners considered that by not treating ‘adultery’ as a criminal offence, it may give sanction to immorality. The Report19 states:

” Some who admit that the penal law now existing on this subject is in practice of little or no use, yet think that the Code ought to contain a provision against adultery. They think that such a provision, though inefficacious for the repressing of vice, would be creditable to the Indian Government, and that by omitting such a provision we should give a sanction to immorality. They say, and we believe with truth, that the higher class of natives consider the existing penal law on the subject as far too lenient, and are unable to understand on what principle adultery is treated with more tenderness than forgery or perjury.

…That some classes of the natives of India disapprove of the lenity with which adultery is now punished we fully believe, but this in our opinion is a strong argument against punishing adultery at all. There are only two courses which in our opinion can properly be followed with respect to this and other great immoralities. They ought to be punished very severely, or they ought not to be punished at all. The circumstance that they are left altogether unpunished does not prove that the Legislature does not regard them with disapprobation. But when they are made punishable the degree of severity of the punishment will always be considered as indicating the degree of disapprobation with which the Legislature regards them. We have no doubt that the natives would be far less shocked by the total silence of the penal law touching adultery than by seeing an adulterer sent to prison for a few months while a coiner is imprisoned for fourteen years.”

(Emphasis supplied)

The Law Commissioners in their Report (supra) further stated:

“…..The population seems to be divided into two classes – those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honour are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances we think it best to treat adultery merely as a civil injury.

…No body proposes that adultery should be punished with a severity at all proportioned to the misery which it produces in cases where there is strong affection and a quick sensibility to family honour. We apprehend that among the higher classes in this country nothing short of death would be considered as an expiation for such a wrong. In such a state of society we think it far better that the law should inflict no punishment than that it should inflict a punishment which would be regarded as absurdly and immorally lenient.”
(Emphasis supplied)

The Law Commissioners considered the plight of women in this country, which was much worse than that of women in France and England. ‘Note Q’ (surpa) records this as the reason for not punishing women for the offence of adultery.

The relevant extract of ‘Note Q’ is reproduced herein below:

” There is yet another consideration which we cannot wholly leave out of sight. Though we well know that the dearest interests of the human race are closely connected with the chastity of women, and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still children. They are often neglected for other wives while still young. They share the attention (sic) of a husband with several rivals. To make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain operation of education and of time. But while it exists, while it continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law. We have given the reasons which lead us to believe that any enactment on this subject would be nugatory. And we are inclined to think that if not nugatory it would be oppressive. It would strengthen hands already too strong. It would weaken a class already too weak. It will be time enough to guard the matrimonial contract by penal sanctions when that contract becomes just, reasonable, and mutually beneficial.”
(Emphasis supplied)

Colonel Sleeman opposed the reasoning of the Law Commissioners on this subject. The ‘backwardness of the natives’ to take recourse to the courts for redress in cases of adultery, arose from ‘the utter hopelessness on their part of getting a conviction.’ He was of the view that if adultery is not made a crime, the adulterous wives will alone bear the brunt of the rage of their husbands. They might be tortured or even poisoned. In his view, offences such as adultery

were inexcusable and must be punished. Colonel Sleeman observed:

“ The silence of the Penal Code will give still greater impunity to the seducers, while their victims will, in three cases out of four, be murdered, or driven to commit suicide. Where husbands are in the habit of poisoning their guilty wives from the want of legal means of redress, they will sometimes poison those who are suspected upon insufficient grounds, and the innocent will suffer.

…Sometimes the poorest persons will refuse pecuniary compensations; but generally they will be glad to get what the heads of their caste or circle of society may consider sufficient to defray the expenses of a second marriage. They dare not live in adultery, they would be outcasts if they did; they must be married according to the forms of their caste, and it is reasonable that the seducer of the wife should be made to defray these expenses for the injured husband. The rich will, of course, always refuse pecuniary compensation, and for the same reason that they would never prosecute the seducer in a civil court. The poor could never afford so to prosecute in such a court; and, as I have said, the silence of the Penal Code would be a solemn pledge of impunity to the guilty seducer, under the efficient government like ours, that can prevent the husband and father from revenging themselves except upon the females.” 20
(Emphasis supplied)

This debate along with the recommendation of the Law Commissioners was considered by the Indian Law Commissioners while drafting the Indian Penal Code.

5.4. The relevant extract from the discussion on whether to criminalize adultery was as follows:

“We have observed that adultery is recognised as an offence by the existing laws of all the Presidencies, and that an Act has been lately passed by the Governor-General of India in Council for regulating the punishment of the offence in the Bombay territories. Adultery is punishable by the Code Penal of France. It is provided for in the Code of Louisiana. The following are Mr. Livingston‘s observations on the subject. “Whether adultery should be considered as an offence against public morality, or left to the operation of the civil laws, has been the subject of much discussion. As far as I am informed, it figures in the penal law of all nations except the English; and some of their most celebrated lawyers have considered the omission as a defect.

Neither the immorality of the act, nor its injurious consequences on the happiness of females, and very frequently on the peace of society and the lives of its members, can be denied. The reason then why it should go unpunished does not seem very clear. It is emphatically one of that nature to which I have just referred, in which the resentment of the injured party will prompt him to take vengeance into his own hands, and commit a greater offence, if the laws of his country refuse to punish the lesser. It is the nature of man, and no legislation can alter it, to protect himself where the laws refuse their aid; very frequently where they do not; but where they will not give protection against injury, it is in vain that they attempt to punish him who supplies by his own energy their remissness. Where the law refuses to punish this offence, the injured party will do it for himself, he will break the public peace, and commit the greatest of all crimes, and he is rarely or never punished. Assaults, duels, assassinations, poisonings, will be the consequence. They cannot be prevented; but, perhaps, by giving the aid of the law to punish the offence which they are intended to avenge, they will be less frequent; and it will, by taking away the pretext for the atrocious acts, in a great measure insure the infliction of the punishment they deserve. It is for these reasons that the offence of adultery forms a chapter of this title.”

Having given mature consideration to the subject, we have, after some hesitation, come to the conclusion that it is not advisable to exclude this offence from the Code. We think the reasons for continuing to treat it as a subject for the cognizance of the criminal courts preponderate.….

…While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in Note Q, regarding the condition of the women of this country, in deference to it we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trial together, and empower the Court, in the event of their conviction, to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine. By Mr. Livingstone‘s Code, the woman forfeits her ‘matrimonial gains‘, but is not liable to other punishment.

We would adopt Colonel Sleeman‘s suggestion as to the punishment of the male offender, limiting it to imprisonment not exceeding five years, instead of seven years allowed at present, and sanctioning the imposition of a fine payable to the husband as an alternative, or in addition.”21

(Emphasis supplied)

5.5. It was in this backdrop that Section 497 came to be included in the I.P.C.

6. THE QUEST FOR REFORM

6.1. In June 1971, the 42nd Report of the Law Commission of India22 analysed various provisions of the I.P.C. and made several important recommendations. With respect to the offence of ‘adultery’, the Law Commission recommended that the adulterous woman must be made equally liable for prosecution, and the punishment be reduced from 5 years to 2 years. This was however, not given effect to.
6.2. In August 1997, the Law Commission of India in its 156th Report23 noted that the offence of adultery under Section 497 is very limited in scope in comparison to the misconduct of adultery in divorce (civil proceedings). The section confers only upon the husband the right to prosecute the adulterous male, but does not confer any right on the aggrieved wife to prosecute her adultererous husband. It was recommended to introduce an amendment to incorporate the concept of equality between sexes in marriage vis-à-vis the offence of adultery. The proposed change was to reflect the transformation of women’s status in Indian society.
However, the recommendation was not accepted.

6.3. In March 2003, the Malimath Committee on Reforms of Criminal Justice System24, was constituted by the Government of India, which considered comprehensive measures for revamping the Criminal Justice System. The Malimath Committee made the following recommendation with respect to “Adultery”:

“16.3.1 A man commits the offence of adultery if he has sexual intercourse with the wife of another man without the consent or connivance of the husband. The object of this Section is to preserve the sanctity of the marriage. The society abhors marital infidelity. Therefore, there is no good reason for not meting out similar treatment to wife who has sexual intercourse with a married man.

16.3.2 The Committee therefore suggests that Section 497 of the I.P.C. should be suitably amended to the effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery……”
(Emphasis supplied)

The recommendations of the Malimath Committee on the amendment of Section 497 were referred to the Law Commission of India, which took up the matter for study and examination. The same is pending consideration.

7. CONTEMPORARY INTERNATIONAL JURISPRUDENCE

Before addressing the issue of the constitutional validity of Section 497 I.P.C., it would be of interest to review how ‘adultery’ is treated in various jurisdictions around the world.

Adultery has been defined differently across various jurisdictions. For instance, adultery charges may require the adulterous relationship to be “open and notorious,”25 or be more than a single act of infidelity, or require cohabitation between the adulterer and the adulteress. Such a definition would require a finding on the degree of infidelity.26 In other instances, the spouses may also be punishable for adultery. Such a provision raises a doubt as to how that may secure the relationship between the spouses and the institution of marriage. Another variation, in some jurisdictions is that cognizance of the offence of adultery is taken only at the instance of the State, and its enforcement is generally a rarity.

7.1. Various legal systems have found adulterous conduct sufficiently injurious to justify some form of criminal sanction. Such conduct is one, which the society is not only unwilling to approve, but also attaches a criminal label to it.

• United States of America

In the United States of America, 17 out of 50 States continue to treat ‘adultery’ as a criminal offence under the State law.27 The characterization of the offence differs from State to State.

In the case of Oliverson v. West Valley City28, the constitutionality of the Utah adultery statute29 was challenged. It was contended that the statute offends the right to privacy and violates substantive due process of law under the U.S. Constitution. The U.S. Court held that adultery is a transgression against the relationship of marriage which the law endeavors to protect. The State of Utah had an interest in preventing adultery. Whether to use criminal sanction was considered a matter particularly within the ambit of the legislature. Given the special interest of the State, it was considered
rational to classify adultery as a crime.

A similar provision exists in the State of New York, wherein adultery is treated as a Class B misdemeanor.30

By way of contrast, in the State of North Carolina, it was held in the Judgment of Hobbs v. Smith31, that adultery should not be treated as a criminal offence. The Superior Court of North Carolina, relied on the judgment of the U.S. Supreme Court, in Lawrence v. Texas32 wherein it was recognized that the right to liberty provides substantial protection to consenting adults with respect to decisions regarding their private sexual conduct. The decision of an individual to commit adultery is a personal decision, which is sufficiently similar to other personal choices regarding marriage, family, procreation, contraception, and sexuality, which fall within the area of privacy. Following this reasoning in Lawrence, the Superior Court of the State of North Carolina held that the State Law criminalizing adultery violated the substantive due process, and the right to liberty under the Fourteenth Amendment to the U.S. Constitution, and the provision criminalizing adultery was declared unconstitutional.

• Canada

In Canada, the Criminal Code of Canada under Section 172 imposes criminal sanctions for adulterous conduct. This provision was introduced in 191833, and continues to remain on the Criminal Code.

The Criminal Code of Canada prohibits endangering the morals of children in a home where one “participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice.”

Furthermore, Canada has a provision for granting divorce in cases of “breakdown of marriages”, and adultery is a ground for establishing the same.34

• Malaysia

In Malaysia, adultery is punishable as a crime under the Islamic Laws. However, the Law Reform (Marriage and Divorce) Act, 1976 made it a civil wrong, for all non-Muslims. Similar to the position in Canada, this Act makes adultery a ground for granting divorce, as it is a proof of “Breakdown of Marriage”.35 Interestingly though, the Act also allows either spouse, to be an aggrieved party and claim damages from the adulterer or adulteress.36

• Japan

In Japan, the provision for adultery was somewhat similar to the present Section 497 of I.P.C.; it punished the woman and the adulterer only on the basis of the complaint filed by the husband. In case the act of adultery was committed with the consent of the husband, there would be no valid demand for prosecution of the offence37. This provision has since been deleted.38 Adultery is now only a ground for divorce in Japan under the Civil Code.39

• South Africa

In South Africa, in the case of DE v. RH40 The Constitutional Court of South Africa struck down adultery as a ground for seeking compensation by the aggrieved persons. The Court relied on an earlier judgment of Green v. Fitzgerald41 wherein it was held that the offence of adultery has fallen in disuse, and “has ceased to be regarded as a crime”.42 The Court noted that even though adultery was of frequent occurrence in South Africa, and the reports of divorce cases were daily published in the newspapers in South Africa, the authorities took no notice of the offence.

• Turkey

In Turkey, the decision of the Constitutional Court of Turkey from 199643 is another instance where the Court struck down the provision of adultery as a criminal offence from the Turkish Penal Code of 1926. The Court noted that the provision was violative of the Right to Equality, as guaranteed by the Turkish Constitution since it treated men and women differently for the same act.

• South Korea

In South Korea, adultery as a criminal offence was struck down by the Constitutional Court of Korea in, what is popularly known as, the Adultery Case of February 26, 201544. The Constitutional Court of Korea held that Article 241, which provided for the offence of adultery, was unconstitutional as it violated Article 10 of the Constitution, which promotes the right to personality, the right to pursue happiness, and the right to self-determination. The right to self- determination connotes the right to sexual self- determination that is the freedom to choose sexual activities and partners. Article 241 was considered to restrict the right to privacy protected under Article 17 of the Constitution since it restricts activities arising out of sexual life belonging to the intimate private domain. Even though the provision had a legitimate object to preserve marital fidelity between spouses, and monogamy, the court struck it down as the provision failed to achieve the “appropriateness of means and least restrictiveness” The Court held as follows:

“In recent years, the growing perception of the Korean society has changed in the area of marriage and sex with the changes of the traditional family system and family members‘ role and position, along with rapid spread of individualism and liberal views on sexual life. Sexual life and love is a private matter, which should not be subject to the control of criminal punishment. Despite it is unethical to violate the marital fidelity, it should not be punished by criminal law….

…..

…The exercise of criminal punishment should be the last resort for the clear danger against substantial legal interests and should be limited at least. It belongs to a free domain of individuals for an adult to have voluntary sexual relationships, but it may be regulated by law when it is expressed and it is against the good sexual culture and practice. It would infringe on the right to sexual self-determination and to privacy for a State to intervene and punish sexual life which should be subject to sexual morality and social orders.

The tendency of modern criminal law directs that the State should not exercise its authority in case an act, in essence, belongs to personal privacy and is not socially harmful or in evident violation of legal interests, despite the act is in contradiction to morality. According to this tendency, it is a global trend to abolish adultery crimes.
(Emphasis supplied)

The Court concluded that it was difficult to see how criminalization of adultery could any longer serve the public interest of protecting the monogamy-based marriage system, maintain good sexual culture, and the marital fidelity between spouses. A consideration of Article 241 which punishes adultery failed to achieve the appropriateness of means and least restrictiveness. Since the provision excessively restricted a person’s sexual autonomy and privacy by criminally punishing the private and

intimate domain of sexual life, the said penal provision was said to have lost the balance of State interest and individual autonomy.

8. PREVIOUS CHALLENGES TO ADULTERY IN INDIA

This court has previously considered challenges to Section 497 inter alia on the ground that the impugned Section was violative of Articles 14 and 15 of the Constitution.

8.1. In Yusuf Abdul Aziz v. State of Bombay45, Section 497 was challenged before this Court inter alia on the ground that it contravened Articles 14 and 15 of the Constitution, since the wife who is pari delicto with the adulterous man, is not punishable even as an “abettor.” A Constitution Bench of this Court took the view that since Section 497 was a special provision for the benefit of women, it was saved by Article 15(3) which is an enabling provision providing for protective discrimination.

In Yusuf Aziz (supra), the Court noted that both Articles 14 and 15 read together validated Section 497.

8.2. Later, in Sowmithri Vishnu v. Union of India & Anr.46, a three-judge bench of this Court addressed a challenge to Section 497 as being unreasonable and arbitrary in the classification made between men and women, unjustifiably denied women the right to prosecute her husband under Section 497.

It was contended that Section 497 conferred a right only upon the husband of the adulterous woman to prosecute the adulterer; however, no such right was bestowed upon the wife of an adulterous man. The petitioners therein submitted that Section 497 was a flagrant violation of gender discrimination against women. The Court opined that the challenge had no legal basis to rest upon. The Court observed that the argument really centred on the definition, which was required to be re-cast to punish both the male and female offender for the offence of adultery.

After referring to the recommendations contained in the 42nd Report of the Law Commission of India, the Court noted that there were two opinions on the desirability of retaining Section 497. However it concluded by stating that Section 497 could not be struck down on the ground that it would be desirable to delete it from the statute books.

The Court repelled the plea on the ground that it is commonly accepted that it is the man who is the ‘seducer’, and not the woman. The Court recognized that 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.

8.3. In V. Revathi v. Union of India47, a two-judge bench of this court upheld the constitutional validity of Section 497, I.P.C. and Section 198(2) of the Cr.P.C. The petitioner contended that whether or not the law permitted a husband to prosecute his disloyal wife, a wife cannot be lawfully disabled from prosecuting her disloyal husband. Section 198(2) Cr.P.C. operates as a fetter on the wife in prosecuting her adulterous husband. Hence, the relevant provision is unconstitutional on the ground of obnoxious discrimination.
This Court held that Section 497 I.P.C. and Section 198(2) Cr.P.C. together form a legislative package. In essence, the former being substantive, and the latter being largely procedural. Women, under these provisions, neither have the right to prosecute, as in case of a wife whose husband has an adulterous relationship with another woman; nor can they be prosecuted as the pari delicto.

8.4. The view taken by the two-judge bench in Revathi (supra), that the absence of the right of the wife of an adulterous husband to sue him, or his paramour, was well-balanced by the inability of the husband to prosecute his adulterous wife for adultery, cannot be sustained. The wife’s inability to prosecute her husband and his paramour, should be equated with the husband’s ability to prosecute his wife’s paramour.

9. In the present case, the constitutionality of Section 497 is assailed by the Petitioners on the specific grounds that Section 497 is violative of Articles 14, 15 and 21.

9.1. Mr. Kaleeswaram Raj learned Counsel appearing for the Petitioners and Ms. Meenakshi Arora, learned Senior Counsel appearing for the Intervenors inter alia submitted that Section 497 criminalizes adultery based on a classification made on sex alone. Such a classification bears no rational nexus with the object sought to be achieved and is hence discriminatory.

It was further submitted that Section 497 offends the Article 14 requirement of equal treatment before the law and discriminates on the basis of marital status. It precludes a woman from initiating criminal proceedings. Further, the consent of the woman is irrelevant to the offence. Reliance was placed in this regard on the judgment of this Court in W. Kalyani v. State48.

The Petitioners submit that the age-old concept of the wife being the property of her husband, who can easily fall prey to seduction by another man, can no longer be justified as a rational basis for the classification made under Section 497.

An argument was made that the ‘protection’ given to women under Section 497 not only highlights her lack of sexual autonomy, but also ignores the social repercussions of such an offence.

The Petitioners have contended that Section 497 of the I.P.C. is violative of the fundamental right to privacy under Article 21, since the choice of a partner with whom she could be intimate, falls squarely within the area of autonomy over a person’s sexuality. It was submitted that each individual has an unfettered right (whether married or not; whether man or woman) to engage in sexual intercourse outside his or her marital relationship.

The right to privacy is an inalienable right, closely associated with the innate dignity of an individual, and the right to autonomy and self- determination to take decisions. Reliance was placed on the judgment in Shafin Jahan v. Asokan K.M. & Ors.49 where this Court observed that each individual is guaranteed the freedom in determining the choice of one’s partner, and any interference by the State in these matters, would have a serious chilling effect on the exercise of the freedoms guaranteed by the Constitution.

The Petitioners placed reliance on the judgment of K.S. Puttaswamy v. Union of India50 wherein a nine-judge bench of this Court held that the right to make decisions on vital matters concerning one’s life are inviolable aspects of human personality. This Court held that:

” 169. ….. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action….”
(Emphasis supplied)

The Petitioners and Intervenors have prayed for striking down Section 479 I.P.C. and Section 198(2) of the Cr.P.C. as being unconstitutional, unjust, illegal, arbitrary, and violative of the Fundamental Rights of citizens.

9.2. On the other hand, Ms. Pinky Anand, learned ASG forcefully submitted that adultery must be retained as a criminal offence in the I.P.C. She based her argument on the fact that adultery has the effect of breaking up the family which is the fundamental unit in society. Adultery is undoubtedly morally abhorrent in marriage, and no less an offence than the offences of battery, or assault. By deterring individuals from engaging in conduct which is potentially harmful to a marital relationship, Section 497 is protecting the institution of marriage, and promoting social well- being.

The Respondents submit that an act which outrages the morality of society, and harms its members, ought to be punished as a crime. Adultery falls squarely within this definition.

The learned ASG further submitted that adultery is not an act that merely affects just two people; it has an impact on the aggrieved spouse, children, as well as society. Any affront to the marital bond is an affront to the society at large. The act of adultery affects the matrimonial rights of the spouse, and causes substantial mental injury.

Adultery is essentially violence perpetrated by an outsider, with complete knowledge and intention, on the family which is the basic unit of a society.

It was argued on behalf of the Union of India that Section 497 is valid on the ground of affirmative action. All discrimination in favour of women is saved by Article 15(3), and hence were exempted from punishment. Further, an under- inclusive definition is not necessarily discriminatory. The contention that Section 497 does not account for instances where the husband has sexual relations outside his marriage would not render it unconstitutional.

It was further submitted that the sanctity of family life, and the right to marriage are fundamental rights comprehended in the right to life under Article 21. An outsider who violates and injures these rights must be deterred and punished in accordance with criminal law.

It was finally suggested that if this Court finds any part of this Section violative of the Constitutional provisions, the Court should read down that part, in so far as it is violative of the Constitution but retain the provision.

DISCUSSION AND ANALYSIS

10. Section 497 is a pre-constitutional law which was enacted in 1860. There would be no presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would

have to be tested on the anvil of Part III of the Constitution.

11. Section 497 of the I.P.C. it is placed under Chapter XX of “Offences Relating to Marriage”.

The provision of Section 497 is replete with anomalies and incongruities, such as:

i. Under Section 497, it is only the male-paramour who is punishable for the offence of adultery. The woman who is pari delicto with the adulterous male, is not punishable, even as an ‘abettor’.

The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery51.

ii. The Section only gives the right to prosecute to the husband of the adulterous wife. On the other hand, the wife of the adulterous man, has no similar right to prosecute her husband or his paramour.

iii. Section 497 I.P.C. read with Section 198(2) of the Cr.P.C. only empowers the aggrieved husband, of a married wife who has entered into the adulterous relationship to initiate proceedings for the offence of adultery.

iv. The act of a married man engaging in sexual intercourse with an unmarried or divorced woman, does not constitute ‘adultery’ under Section 497.

v. If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery.

The anomalies and inconsistencies in Section 497 as stated above, would render the provision liable to be struck down on the ground of it being arbitrary and discriminatory.

12. The constitutional validity of section 497 has to be tested on the anvil of Article 14 of the Constitution.

12.1. Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination.

12.2. Article 14 forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification is permissible if two conditions are satisfied:

i. The classification is made on the basis of an ‘intelligible differentia’ which distinguishes persons or things that are grouped together, and separates them from the rest of the group; and

ii. The said intelligible differentia must have a rational nexus with the object sought to be achieved by the legal provision.

The discriminatory provisions in Section 497 have to be considered with reference to the classification made. The classification must have some rational basis,52 or a nexus with the object sought to be achieved.

With respect to the offence of adultery committed by two consenting adults, there ought not to be any discrimination on the basis of sex alone since it has no rational nexus with the object sought to be achieved.

Section 497 of the I.P.C., makes two classifications:

i. The first classification is based on who has the right to prosecute:

It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person given the right to prosecute for the offence of adultery.

Conversely, a married woman who is the wife of the adulterous man, has no right to prosecute either her husband, or his paramour.

ii. The second classification is based on who can be prosecuted.

It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual; the adulterous woman is not even considered to be an “abettor” to the offence.

The aforesaid classifications were based on the historical context in 1860 when the I.P.C. was enacted. At that point of time, women had no rights independent of their husbands, and were treated as chattel or ‘property’ of their husbands.

Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a ‘theft’ of his property, for which he could proceed to prosecute the offender.

The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone.

12.3. A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14.

Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.

13. A law which could have been justified at the time of its enactment with the passage of time may become out- dated and discriminatory with the evolution of society and changed circumstances.53 What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic.

A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality.54

Section 497 of the I.P.C. was framed in the historical context that the infidelity of the wife should not be punished because of the plight of women in this country during the 1860’s. Women were married while they were still children, and often neglected while still young, sharing the attention of a husband with several rivals.55 This situation is not true 155 years after the provision was framed. With the passage of time, education, development in civil-political rights and socio-economic conditions, the situation has undergone a sea change. The historical background in which Section 497 was framed, is no longer relevant in contemporary society.

It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man, is a ‘victim’, and the male offender is the ‘seducer’.

Section 497 fails to consider both men and women as equally autonomous individuals in society.

In Anuj Garg v. Hotel Assn. of India,56 this Court held that:

“20. At the very outset we want to define the contours of the discussion which is going to ensue. Firstly, the issue floated by the State is very significant, nonetheless it does not fall in the same class as that of rights which it comes in conflict with, ontologically. Secondly, the issue at hand has no social spillovers. The rights of women as individuals rest beyond doubts in this age. If we consider (various strands of) feminist jurisprudence as also identity politics, it is clear that time has come that we take leave of the theme encapsulated under Section 30. And thirdly we will also focus our attention on the interplay of doctrines of self-determination and an individual’s best interests.

……..

26. When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criteria. The criteria which in absence of any constitutional provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criteria in the 21st century. In the early 20th century, the hospitality sector was not open to women in general. In the last 60 years, women in India have gained entry in all spheres of public life. They have also been representing people at grassroot democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriages, pilots, et. al. ”

(Emphasis supplied)

The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereo-types in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.

There is therefore, no justification for continuance of Section 497 of the I.P.C. as framed in 1860, to remain on the statute book.

14. Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favour of women and children, to protect and uplift this class of citizens.

Section 497 is a penal provision for the offence of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as ‘beneficial legislation’.

This Court in Thota Sesharathamma and Anr. v. Thota Manikyamma (Dead) by Lrs. And Ors.57 held that:

“Art. 15(3) relieves from the rigour of Art. 15(1) and charges the State to make special provision to accord to women socio-economic equality. As a fact Art. 15(3) as a fore runner to common code does animate to make law to accord socio-economic equality to every female citizen of India, irrespective of religion, race, caste or religion.”

In W. Kalyani v. State58 this Court has recognised the gender bias in Section 497. The court in Kalyani (supra) observed that “The provision is currently under criticism from certain quarters for showing a string gender bias for it makes the position of a married woman almost as a property of her husband.”

The purpose of Article 15(3) is to further socio- economic equality of women. It permits special legislation for special classes. However, Article 15(3) cannot operate as a cover for exemption from an offence having penal consequences.

A Section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination.

15. The Petitioners have contended that the right to privacy under Article 21 would include the right of two adults to enter into a sexual relationship outside marriage.

The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved.

It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21.

In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra): (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State interest, and (iii) proportionality, which ensures a rational nexus between the object and the means adopted. Section 497 as it stands today, fails to meet the three-fold requirement, and must therefore be struck down.

16. The issue remains as to whether ‘adultery’ must be treated as a penal offence subject to criminal sanctions, or marital wrong which is a valid ground for divorce.

16.1. One view is that family being the fundamental unit in society, if the same is disrupted, it would impact stability and progress. The State, therefore, has a legitimate public interest in preserving the institution of marriage.

Though adultery may be an act committed in private by two consenting adults, it is nevertheless not a victim-less crime. It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulteror and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences.

Throughout history, the State has long retained an area of regulation in the institution of marriage. The State has regulated various aspects of the institution of marriage, by determining the age when an adult can enter into marriage; it grants legal recognition to marriage; it creates rights in respect of inheritance and succession; it provides for remedies like judicial separation, alimony, restitution of conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition, parental responsibility; guardianship and welfare of the child. These are all areas of private interest in which the State retains a legitimate interest, since these are areas which concern society and public well-being as a whole.

Adultery has the effect of not only jeopardising the marriage between the two consenting adults, but also affects the growth and moral fibre of children. Hence the State has a legitimate public interest in making it a criminal offence.

16.2. The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim.
To criminalize a certain conduct is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm and wrong doing.

The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the ‘best interest’ of the individual.

Andrew Ashworth and Jeremy Horder in their commentary titled ‘Principles of Criminal Law’59 have stated that the traditional starting point of criminalization is the ‘harm principle’ the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be proved before the State can classify a wrongful act as a criminal offence.

John Stuart Mill states that “the only purpose for which power can be rightly exercised over the member of a civilized community against his will is to prevent harm to others.” 60

The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre-requisite of criminalization is that the conduct amounts to a moral wrong.61 That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.

17. In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.

Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law?

The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.

The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.

The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

18. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that :

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V. Rewathi (supra) and W. Kalyani (supra) hereby stand overruled.

……………………..J.
(INDU MALHOTRA)

New Delhi
September 27, 2018

FOOTNOTE

1 The New international Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.) at page 21.
2 Outhwaite, R.B. (2007). The Rise and Fall of the English Ecclesiastical Courts, 1500–1860. Cambridge, UK: Cambridge University Press
3 Fernandez, Angela “Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity.” Married Women and the Law: Coverture in England and the Common Law World, edited by Tim Stretton and Krista J. Kesselring, McGill-Queen’s University Press, 2013, pp. 192–216.
4 Blackstone‘s Commentaries on the Laws of England, Books III & IV (8th Edn.), 1778
5 Bracton: De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England attributed to Henry of Bratton, c. 1210-1268) Vol III, pg. 115
Available at http://bracton.law.harvard.edu/index.html
6 [1966] 3 All E.R. 601
7 1807 – 1901 A.D.
8 Margot Finn (1996). Women, Consumption and Coverture in England, c. 1760–1860. The Historical Journal, 39, pp 703-722
9 The High Sheriff of Oxfordshire’s Annual Law Lecture given by Lord Wilson on 9 October 2012
Available at: https://www.supremecourt.uk/docs/speech-121009.pdf
10 Matrimonial Causes Act 1857; 1857 (20 & 21 Vict.) C. 85
11 LIX. No Action for Criminal Conversation:
“After this Act shall have come into operation no Action shall be maintainable in England for Criminal Conversation.”
12 XXXIII. Husband may claim Damages from Adulterers:
“Any Husband may, either in a Petition for Dissolution of Marriage or for Judicial Separation, or in a Petition limited to such Object only, claim Damages from any Person on the Ground of his having committed Adultery with the Wife of such Petitioner, and such Petition shall be served on the alleged Adulterer and the Wife, unless the Court shall dispense with such Service, or direct some other Service to be substituted; and the Claim made by every such Petition shall be heard and tried on the same principle, in the same manner, and subject to the same or the like rules and regulations as actions for criminal conversations are now tried and decided in Courts of Common Law; and all the enactments herein contain with reference to the hearing and decision of Petitions to the Courts shall, so far as may be necessary, be deemed applicable to the hearing and decision of Petitions presented under this enactment..”
13 Id.
14 Uma Chakravarti, Gendering Caste Through a Feminist Lens, STREE Publications (2003) at page 71.
15 156th Report on the Indian Penal Code (Vol. I), Law Commission of India at para 9.43 at page 169
Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
16 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code
17 A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas Babington Macaulay, Note Q
18 The laws governing adultery in the Colonial areas were laid down in Regulation XVII of 1817, and Regulation VII of 1819; the Law Commissioners observed that the strict evidentiary and procedural requirements, deter the people from seeking redress.
19 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code
20 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code
21 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code
22 42nd Report on the Indian Penal Code, Law Commission of India
Available at: http://lawcommissionofindia.nic.in/1-50/report42.pdf
23 156th Report on the Indian Penal Code (Vol. I), Law Commission of India, pages 169 – 172
Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
24 Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, chaired by Justice V.S. Malimath, (2003)
Available at:https://mha.gov.in/sites/default/files/criminal_justice_system.pdf
25 Illinois Criminal Code, 720 ILCS 5/11-35, Adultery
“(a) A person commits adultery when he or she has sexual intercourse with another not his or her spouse, if the behavior is open and notorious,…”
26 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 Journal Of Family Law 45, 51-52 (1991)
27 Abhinav Sekhri, The Good, The Bad, and The Adulterous: Criminal Law and Adultery in India, 10 Socio Legal Review 47 (2014)
28 875 F. Supp. 1465
29 Utah Code Ann. 76-7-103, “(1) A married person commits adultery when he voluntarily has sexual intercourse with a person other than his spouse. (2) Adultery is a class B misdemeanour.”
30 New York Penal Laws, Article 255.17-Adultery, “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is a class B misdemeanour.”
31 No. 15 CVS 5646 (2017) [Superior Court of North Carolina)
32 539 US 558 (2003)
33 Criminal Code of Canada, 1985, Section 172, “(1) Every one who, in the home of a child, participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice, and thereby endangers the morals of the child or renders the home an unfit place for the child to be in, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) For the purposes of this section, “child” means a person who is or appears to be under the age of eighteen years.”
34 Divorce Act, 1968, “Section 8 (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
(2) Breakdown of a marriage is established only if:
(a) …..
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or …..”
35 S. 54(1)(a), Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,
“54. (1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say:
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent…..”
36 S. 58, Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,
“58. (1) On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.
(2) A petition under subsection (1) may include a prayer that the co-respondent be condemned in damages in respect of the alleged adultery.
(3) Where damages have been claimed against a co-respondent— (a) if, after the close of the evidence for the petitioner, the court is of the opinion that there is not sufficient evidence against the co-respondent to justify requiring him or her to reply, the co-respondent shall be discharged from the proceedings; or (b) if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, the court may award the petitioner such damages as it may think fit, but so that the award shall not include any exemplary or punitive element.”
37 S. 183, Penal Code, 1907 [Japan], “Whoever commits adultery with a married woman will be punished by prison upto two years. The same applies to the other party of the adultery. These offences are only prosecuted on demand of the husband. If the husband has allowed the Adultery, his demand is not valid.” [ as translated by Karl-Friedrich Lenz, in History of Law in Japan since 1868, ed. Wilhelm Rohl, published by Brill, 2005, at page 623]

38 H. Meyers, “Revision of Criminal Code of Japan” Washington Law Review & State Bar Journal, Vol. 25, (1950) at pp. 104-134
39 Article 770, Civil Code, 1896. [Japan], “Article 770 (1) Only in the cases stated in the following items may either husband or wife file a suit for divorce: (i) if a spouse has committed an act of unchastity; ….”
40 RH v. DE (594/2013) [2014] ZASCA 133 (25 September 2014)
411914 AD 88
42 Id.
43 Anayasa Mahkemesi, 1996/15; 1996/34 (Sept. 23, 1996)
See also, Anayasa Mahakemsi, 1998/3; 1998/28 (June 23, 1998) and Anayasa Mahakemsi, 1997/45. 1998/48 (July 16, 1998)
44 Adultery Case, 27-1 (A) KCCR 20, February 26, 2015
45 1954 SCR 930
46 (1985) Supp SCC 137
47 (1988) 2 SCC 72
48 (2012) 1 SCC 358
49 2018 SCC Online SC 343
50 (2017) 10 SCC 1
51 W Kalyani v. State, (2012) 1 SCC 358; at para 10.
52 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 (A legislation may not be amenable to a challenge on the ground of violation of Article 14 of the Constitution if its intention is to give effect to Articles 15 and 16 or when the differentiation is not unreasonable or arbitrary).
53 Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222;
See also Ratan Arya v. State of Tamil Nadu, (1986) 3 SCC 385
54 John Vallamattom v. Union of India, (2003) 6 SCC 611
55 ‘A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas Babington Macaulay, Note Q
56 (2008) 3 SCC 1
57 (1991) 4 SCC 312
58 (2012) 1 SCC 358
59 Oxford University Press, (7th Edn.) May 2013
60 Mill, John S., Chapter I: Introductory, On Liberty, Published London: Longman, Roberts, & Green Co. 1869, 4th Edn.
61 A P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The Principles Of Criminalisation, Oxford: Hart Publishing (2011)

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]]> https://bnblegal.com/landmark/joseph-shine-vs-union-of-india/feed/ 0 S. Tirupathi Rao Vs. M. Lingamiah https://bnblegal.com/landmark/s-tirupathi-rao-vs-m-lingamiah/ https://bnblegal.com/landmark/s-tirupathi-rao-vs-m-lingamiah/#respond Sat, 04 Jul 2020 04:45:06 +0000 https://bnblegal.com/?post_type=landmark&p=254309 IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH * HON’BLE SRI JUSTICE V.RAMASUBRAMANIAN AND HON’BLE SRI JUSTICE N. BALAYOGI + Contempt Appeal No.33 of 2017 and Letters Patent Appeal No.1 of 2018 % 16-8-2018 Contempt Appeal No.33 of 2017 S. Tirupathi Rao, Tahsildar, Serilingampally […]

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]]> IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF
ANDHRA PRADESH
* HON’BLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HON’BLE SRI JUSTICE N. BALAYOGI
+ Contempt Appeal No.33 of 2017
and
Letters Patent Appeal No.1 of 2018

% 16-8-2018

Contempt Appeal No.33 of 2017

S. Tirupathi Rao, Tahsildar, Serilingampally Mandal, Ranga Reddy District …Appellant
Vs.
M. Lingamaiah, S/o M. Pullaiah, aged about 77 years, Occ: Business, R/o H.No.16-2-805, Shankeswara Bazar, Saidabad, Hyderabad and 6 others …Respondents

L.P.A.No.1 of 2018

S. Tirupathi Rao, Tahsildar, Serilingampally Mandal, Ranga Reddy District …Appellant
Vs.
M. Lingamaiah, S/o M. Pullaiah, aged about 77 years, Occ: Business, R/o H.No.16-2-805, Shankeswara Bazar, Saidabad, Hyderabad and 6 others …Respondents

! Counsel for the Appellant : Mr. Sharat Kumar, Spl. Govt.
Pleader
^ Counsel for Respondents : Mr. Vedula Venkata Ramana,
Senior Counsel
< Gist: > Head Note:
? Cases referred:
1. AIR 1959 SC 798
2. (2008) 8 SCC 648
3. AIR 1986 SC 293
4. (1804) 1 Ch. 298
5. AIR 1937 Bom 1 (FB)

HON’BLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HON’BLE SRI JUSTICE N. BALAYOGI
Contempt Appeal No.33 of 2017
and
Letters Patent Appeal No.1 of 2018

COMMON JUDGMENT: (per V. Ramasubramanaian, J)

As against an order passed by the learned Judge in a Contempt Case under Sections 10 to 12 of the Contempt of Courts Act, 1971, (i) punishing the Tahsildar, Serilingampalli Mandal, Ranga Reddy District, and (ii) also further directing him to effect mutation of the name of the 1st respondent herein in the revenue records, in terms of a final decree dated 26-12-2003 passed in Application No.1409 of 2003 in C.S.No.7 of 1958, the Tahsildar has come up with the above Contempt Appeal as well as Letters Patent Appeal, challenging in the contempt appeal, the punishment imposed upon him and challenging in the letters patent appeal, the further directions issued.

2. Heard Mr. Sharat Kumar, learned Special Government Pleader attached to the office of the learned Additional Advocate General for the State of Telangana and Mr. Vedula Venkataramana, learned senior counsel appearing for the 1st respondent herein. Case of the 1st respondent in his W.P.No.1729/2009

3. The 1st respondent herein filed a writ petition in W.P.No.1729 of 2009 on the file of this Court, seeking implementation of an order passed by this Court dated 09-10-2002, in Application No.1146 of 2002 in C.S.No.7 of 1958. The contentions with which he (the 1st respondent in these appeals) came up with W.P.No.1729 of 2009 were,– that a civil suit for partition in C.S.No.7 of 1958 was filed by one Smt. Saheb Jadi Sultan Jahan Begum, the daughter of late Nawab Dowlat Bahadur, in respect of the matruka properties, allegedly including a land admeasuring Ac.209.00 guntas in Survey Nos.1 to 49 in Raidurg village, Serilingampalli Mandal, Ranga Reddy District; that a preliminary decree was passed in the suit on 06-04-1959; that the decree holders then executed a deed of assignment in favour of the 1st respondent herein and few others on 01-10-2002 in respect of the land of an extent of Acs.143.00 guntas, forming part of Survey Nos.1 to 37, 39 to 43 and 45 to 49; that the deed of assignment was recognized by this Court and the 1st respondent and others also paid a stamp duty to the tune of Rs.96,82,000/-; that by an order dated 09-10-2002, this Court recognized the said assignment deed, in Application Nos.1144 to 1147 of 2002 and also directed the Receiver-cum-Commissioner to put the parties in possession of the said land and accordingly, the Receiver-cum-Commissioner delivered the land to an extent of Ac.135.07 guntas in Survey Nos.1 to 7, 10 to 12, 15 to 19, 25 to 28, 30 to 32, 35 to 43 and 45 to 49 under a Panchanama dated 26-02- 2002; that there was also a direction to the Revenue Department to effect mutation in the revenue records; that pursuant to the directions issued by this Court, the Commissioner not only delivered possession of the land, but also filed a compliance report dated 13- 12-2002; that thereafter the 1st respondent herein filed an application in Application No.1409 of 2003, seeking a final decree to be passed in C.S.No.7 of 1958; that accordingly this court passed a final decree on 26-12-2003, in respect of land of an extent of Acs.84.30 guntas in Survey No.46 of Raidurg village in Application No.1409 of 2003; that the 1st respondent herein and others also deposited stamp duty of Rs.4,24,450/- for engrossing the final decree on the same; that by an order dated 09-10-2002, passed in Application No.1146 of 2002, this Court directed the revenue officials to effect mutation in the revenue records; that pursuant to the order passed in Application No.1146 of 2002, the 1st respondent made applications to the Joint Collector on 17-01-2004, 08-06-2006 and 01-05-2008; that the 1st respondent herein also made applications to the Chief Commissioner of Land Administration on 25-05-2004, 13-11-2005 and 19-11-2008; that he also made an application on 01-09-2008 to the Tahsildar; that in spite of repeated applications, the Tahsildar did not effect mutation and did not implement the orders passed by this Court; that one Mr. M. Purnachandra Rao filed an appeal in OSA(SR)No.1900 of 2005, questioning the final decree, but the same was dismissed by a Division Bench by an order dated 26-04- 2005; that the said person filed a Special Leave Petition, in which leave was granted and it was converted into Civil Appeal No.1121 of 2008 on the file of the Supreme Court; that in the said Civil Appeal, the District Collector also sought to get impleaded before the Supreme Court, but the Supreme Court dismissed the application for impleadment filed by the District Collector on 17-05-2007; that even then the District Collector filed a counter in the Civil Appeal, but the Supreme Court dismissed the Civil Appeal by a judgment dated 11-02-2008; that thereafter there was no impediment for the revenue officials to effect mutation in the revenue records; and that even then they did not effect mutation, forcing the first respondent to come up with the writ petition. Order in W.P.No.1729/2009

4. The said writ petition W.P.No.1729 of 2009 filed by the 1st respondent herein, was taken up by a learned Judge of this Court along with another writ petition in W.P.No.581 of 2009 and both of them were disposed of at the admission stage itself, by an order dated 05-03-2009. The order dated 05-03-2009 passed in W.P.Nos. 581 and 1729 of 2009 comprises of four paragraphs, of which paragraphs 3 and 4 alone are sufficient to be reproduced. Hence, they are reproduced as follows:

“A partial final decree was passed by this Court on 26.12.2003 in Application No.1409 of 2003 in O.S.No.7 of 1958, directing several steps. One of the steps is that the names of the decree holders be mutated in respect of the property mentioned in the decree. It appears that the persons, who have purchased part of the property from the parties to the decree, have also approached the respondents for mutation of their names. Having regard to the fact that there was a specific direction in the decree, requiring the authorities first to implement the decree by effecting mutation in only after the initial step is complied with.

Hence, the writ petitions are disposed of, directing that the Deputy Collector/Tahsildar, Serilingampally Mandal, Ranga Reddy District, shall effect necessary mutations in the revenue records strictly in accordance with the decree dated 26.12.2003, in Application No.1409 of 2003 in C.S.No.7 of 1958 passed by this Court, after issuing notices to the affected parties. The subsequent purchasers, if any, shall be entitled to pursue their remedies after this step. There shall be no order as to costs.”

5. Before proceeding further, it must be recorded that the cause title portion of the order of the learned judge shows that the District Collector, Revenue Divisional Officer and the Tahsildar were represented by Government Pleader for Revenue. But the fact remains that the writ petitions were filed in the year 2009 and were disposed of in March, 2009 itself, showing thereby that they were disposed of at the stage of admission. The affidavit in support of W.P.No.1729 of 2009 appears to have been sworn on 02-02-2009. The writ petition was disposed of on 05-03-2009. What happened after the disposal of W.P.No.1729/2009

6. It appears that an application for review was filed by the State in Review Application No.6487 of 2010, but the same was dismissed on 29-12-2010. It appears further that an appeal was filed by a third party in W.A.No.1108 of 2009 in which the State attempted to intervene, but could not get any order. Thereafter, the State filed an appeal in O.S.A.(SR).No.2116 of 2011 along with the an application in Application No.369 of 2011 for leave to file appeal and another application in Application (SR).No.7249 of 2011 for condoning the delay of 2633 days in filing the appeal against the final decree passed on 26-12-2003 in Application No.1409 of 2003. Both the applications of the State were dismissed by a Bench of this Court by an order dated 24-08-2011. It appears that Special Leave Petitions filed by the State in SLP (Civil) Nos.4904 and 4905 of 2012 were also dismissed by the Supreme Court by an order dated 26-03- 2012.

Filing of the Contempt case and the order therein

7. Therefore, complaining of disobedience of the directions issued in W.P.No.1729 of 2009 dated 05-03-2009, the 1st respondent herein filed a Contempt Petition in C.C.No.217 of 2014. The State opposed the contempt petition on the ground, inter alia, (i) that it was barred by limitation; (ii) that the contempt will not lie before the learned single Judge, as the order of the single Judge out of which the contempt arose, got merged with an order passed by a Division Bench in Writ Appeal No.1108 of 2009 and (iii) that the order dated 05-03-2009 is not capable of being enforced for various reasons. After rejecting all the objections raised by the officials of the Revenue Department, the learned Judge held the appellant herein (Tahsildar) guilty of willful disobedience of the order dated 05-03- 2009 passed in W.P.No.1729 of 2009. Therefore, the learned Judge sentenced the appellant herein to simple imprisonment for two months together with fine of Rs.1500/-, to be paid within four weeks. In addition, the learned Judge issued a direction to the appellant to effect mutation in the revenue records in accordance with the final decree dated 26-12-2003 in Application No.1400 of 2003 in C.S.No.7 of 1958.

The present appeals

8. As against the finding of guilt rendered by the learned Judge and the punishment imposed upon him, the Tahsildar has come up with a Contempt Appeal in C.A.No.33 of 2017 under Section 19 of the Contempt of Courts Act, 1971. As against the other portion of the order directing the Tahsildar to effect mutation, the Tahsildar has come up with a Letters Patent Appeal in L.P.A.No.1 of 2018 under Clause 15 of the Letters Patent.

Grounds of appeal

9. Assailing the order of the learned Judge, it is contended by Mr. Sharat Kumar, learned Special Government Pleader appearing on behalf of the learned Additional Advocate General that though the power of this Court under Article 215 of the Constitution cannot be disputed, the object of prescribing a period of limitation of one year, in Section 20 of the Contempt of Courts Act, 1971 cannot be lost sight of and that the said provision cannot be rendered otiose. It is his contention that under Rule 21 of the Andhra Pradesh High Court Writ Proceedings Rules, 1977, an order, for the implementation of which no time limit is set by the order itself, shall be implemented within 2 months. Therefore, by implication, the starting point for computing the period of limitation is the date of expiry of two months from the date of any order passed by this Court, if no time limit is stipulated in the order itself. In this case, the period of two months from the date of the order of the learned Judge expired on 04-05- 2009 and hence, the 1st respondent ought to have filed the contempt petition on or before 04-05-2010. It is further contended by the learned Special Government Pleader that the writ petition in W.P.No.1729 of 2009 was disposed of by a common order dated 05- 03-2009 passed in the said writ petition as well as another writ petition in W.P.No.581 of 2009. A single writ appeal was filed by the other party in W.A.No.581 of 2009 and the said writ appeal was dismissed on 18-08-2009. Therefore, it is contended by the learned Special Government Pleader that though there was no separate appeal in W.P.No.1729 of 2009, the order passed therein got confirmed by the Division Bench on 18-08-2009 and that therefore, the contempt case could not have been entertained by the learned single Judge. The learned Special Government Pleader also assailed the very claim of the petitioner that there was a final decree and contended that the whole thing was vitiated by fraud, and hence, the directions obtained by the 1st respondent by perpetrating a fraud, cannot be sought to be enforced through the contempt jurisdiction of this Court.

Contentions of the first respondent

10. In response, it is contended by Mr. Vedula Venkataramana, learned senior counsel appearing for the 1st respondent that it is well settled that the power of this Court to punish a person for contempt, stems out of Article 215 of the Constitution and not out of the Contempt of Courts Act, 1971. In any case, the failure of the appellant to effect mutation in the revenue records was a continuing wrong and hence, the question of applying the limitation as per Section 20 of the Act, does not arise. The learned senior counsel further contended that the theory of merger pleaded by the learned Special Government Pleader is only a façade. It is not as if the appellant was willing to implement the orders passed in W.P.No.1729 of 2009, if a contempt had been filed before the Division Bench. The learned senior counsel submitted that since the final decree had already attained finality and the attempt made by third parties as well as the State to have the final decree set at naught having already failed, the appellant was not entitled to argue the matter on merits.

11. We have carefully considered the above submissions. Limitation:

12. On the question of limitation, it is no doubt true that under Article 215 of the Constitution, every High Court is a Court of record and it has all the powers of such a court including the power to punish for contempt of itself. But on the question whether such a power can be abrogated or stultified, by any law made by the Parliament, the Supreme Court held in Pallav Sheth v. Custodian (AIR 2001 SC 3763) that a law providing for the quantum of punishment or providing for what may or may not be regarded as acts of contempt or providing even for a period of limitation, cannot be taken to be a provision which abrogates or stultifies the contempt jurisdiction under Article 215 of the Constitution. Therefore, the prescription of a period of limitation under Section 20 of the Contempt of Courts Act, 1971, cannot be taken as abrogating or stultifying the power of this Court under Article 215 of the Constitution.

13. Section 20 of the Contempt of Courts Act, 1971, declares that no court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. Admittedly, the 1st respondent herein filed the contempt case beyond the period of limitation and there is no dispute about this factual aspect. There is also no dispute about the fact that under Rule 21 of the Andhra Pradesh High Court Writ Proceeding Rules, 1977, the direction issued by a writ court, is to be implemented within two months, if no period for its implementation is stipulated in the order itself. This is why the learned Special Government Pleader contends that the starting point for the period of limitation was the expiry of two months from the date of the order passed in W.P.No.1729 of 2009.

14. In support of his contention based upon Rule 21 and Section 20 of the Act, the learned Special Government Pleader relied upon a decision of a Division Bench of this Court in Dr. Subhendu Sen (VSM) v. Sri Pradeep Kumar (order dated 01-03- 2011 in C.C.No.997 of 2010). In the said case, the Division Bench of this Court held that Rule 21 would apply to cases wherever no time limit is stipulated by the court, for the enforcement of its orders passed in writ proceedings. Therefore, the Court held that the starting point for the period of limitation would be the date on which the period of two months would expire.

15. But the judgment of this Court in Dr. Subhendu Sen was distinguished by the learned Judge in the order impugned in these appeals, on the ground that in the case of Dr. Subhendu Sen, the limitation had not expired at all. But we think the learned judge was in error in proceeding on the said footing. The decision of the Division Bench in Dr. Subhendu Sen was relied upon, for the proposition of law with regard to the applicability of Rule 21 of the Andhra Pradesh High Court Writ Proceeding Rules, 1977, in the back drop of Section 20 of the Contempt of Courts Act. The fact that the contempt was actually filed within one year in the said case namely Dr. Subhedu Sen, may make the decision in Dr. Subhedu Sen wrong on facts. We are not concerned about the correctness of the decision on facts in Dr. Subhedu Sen. We are only concerned about whether the principle of law followed in Dr. Subhesu Sen was binding on the learned Judge or not. Our answer to this question has to be in the affirmative.

16. In the order impugned in these appeals, the learned judge placed reliance upon the decision of the Supreme Court in Firm Ganpat Ram Raj Kumar v. Kalu Ram (1989 Suppl (2) SCC 418), which was also quoted with approval by the subsequent decision in Pallav Sheth. But in Firm Ganpat Ram Raj Kumar v. Kalu Ram, the tenants filed an affidavit of undertaking before the Supreme Court to vacate the premises within six months. On the basis of the undertaking, the eviction was stayed. But without filing of an affidavit of undertaking and without vacating the premises, the son of one of the partners was set up to file a civil suit and he obtained an order of injunction. Therefore, the contempt petition was filed. It was in that context that the Supreme Court observed that there was a continuing wrong.

17. The reliance placed by the learned Judge in the order impugned in these appeals, upon a decision of the Division Bench of Gujarat High Court and a decision of the Delhi High Court in Lopa Ben Patel v. Hitendra Rambhai Patel (2000 Crl.L.J.2709 (DB)) and Santosh Kapoor v. Apex Computers (P) Ltd., (2009 ILR 3 Delhi 628) appears to be incorrect for the reason that those decisions arose out of cases where monthly maintenance was not paid or monthly payments were not made. These are cases where there was a recurring cause of action.

18. The concept of continuing wrong has a correlation to the concept of recurring cause of action. There are cases where directions issued by the Court would give rise to a recurring cause of action. Say for instance, there is a direction for payment of salary or pensionary benefits. The right to receive, accrues every month and hence the cause of action can be said to be a recurring one.

19. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan1 , the Supreme Court explained the concept of continuing wrong. The Court held that “it is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act 1 AIR 1959 SC 798 responsible and liable for the continuance of the said injury”. The Court also held that “if the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue”. However, as an exception, it was further pointed out by the Supreme Court that “if however a wrongful act is of such a character that the injury caused by itself is continuous, then the act constitutes a continuing wrong”.

20. The Court cautioned that it is always necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.

21. Applying to service jurisprudence, the distinction between a continuing wrong and a wrong which is complete, but the mere effect of which continued, it was held by the Supreme Court in Union of India v. Tarsem Singh2 that a belated service-related claim can be rejected on the ground of limitation and that one of the exceptions to the said rule is cases relating to a continuing wrong. It was held by the Supreme Court that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong is commenced, if such continuing wrong creates a continuing source of injury. The Court also pointed out that there is an exception to the exception. This exception to the exception is the grievance in respect of any decision which related to 2 (2008) 8 SCC 648 or affected several others also. Interestingly, the Supreme Court allowed the appeal of the Union of India in Tarsem Singh and restricted the relief granted to the individual, only to a period of three years immediately preceding the date of filing of the writ petition, on the ground that the claim though a continuing wrong, cannot be enforced beyond the period of limitation.

22. In Commissioner of Wealth Tax vs. Suresh Seth3 the Supreme court held that “ordinarily, a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or of omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed.” The court further held that “the distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty” and that “ a wrong or default which is complete but whose effect may continue to be felt even after its completion is however not a continuing wrong or default”. This principle was reiterated in Maya Rani Kunj v. Commissioner of Income Tax4 , where the Supreme Court held that a wrong or default which is complete, but whose effect may continue to be felt even after its completion, is not a continuing wrong. 3 (1981) 2 SCC 790 4 AIR 1986 SC 293

23. As a matter of fact, the concept of a continuing wrong in the Law of Torts and Crimes, is nothing but a parallel to the concept of a continuing cause of action in civil matters. More than two centuries ago, Lord Lindley observed in Hole v. Chard Union5 that there is no such thing as a continuing cause of action and that what is called a continuing cause of action is something that arises from the repetition of acts and omissions of the same kind as that for which the action was brought. When an act which constitutes a cause of action is repeated day after day, it becomes a continuing cause of action and the same is what is expressed in Latin as “action de die in diem”. The concept of de die in diem cannot be applied in the branch of Criminal Law. This was explained by a Full Bench of the Bombay High Court in Emperor v. Chotta Lal Amar Chand6 . It was held therein that a person cannot be charged with committing an offence de die in diem over a substantial period.

24. Though the Contempt of Courts Act, 1971 recognises a distinction between the civil contempt and criminal contempt, the essence of both, is to punish the contemnor. Therefore, the civil law concept of de die in diem cannot be applied to the failure of a contemnor to comply with an order requiring him to carry out a single act.

25. In the case on hand, the direction issued to the appellant in the previous proceedings, was to effect mutation in the Revenue records. What was expected of the appellant was to carry out 5 (1804) 1 Ch. 298 6 AIR 1937 Bom 1 (FB) a single act. His failure to carry out the single act of effecting mutation, cannot be said to be similar to a cause of action that arose de die in diem. It may be true that the effect of the failure of the appellant to carry out the single act, may have caused an injury, to be felt by the respondents for a long time, but that by itself would not make it a case of continuing wrong to enable this Court to come to the conclusion that the contempt was saved by limitation. Hence, we have no alternative except to take a position that the contempt petition was filed by the respondents, beyond the period of limitation prescribed by Section 20 of the Contempt of Courts Act, since the starting point for the period of limitation, had to be reckoned with reference to Rule 21 of the High Court Rules. Accordingly, we hold that the contempt case was filed by the respondents beyond the period of limitation.

Merger:

26. The second objection raised by the learned Special Government Pleader to the maintainability of the contempt case was that the order of the learned single Judge out of which the contempt case arose, had merged with the order of the Division Bench and that therefore the contempt case could not have been filed before the learned single Judge.

27. But we are unable to sustain the said contention. As against a common order passed in two writ petitions, only one writ appeal was filed. The order passed in the writ petition out of which the contempt case arose, was not appealed against. Therefore, the respondents could not have invoked the jurisdiction of the Division Bench. There is a distinction between different parties seeking the same relief on the same or different grounds and different parties seeking the same relief on the same cause of action. Merely because two writ petitions are decided by a common order, no merger would take place, especially in cases where both parties, though had similar claims, were on different pitches. Therefore, this argument of the learned Special Government Pleader is rejected.

Final Decree Unenforceable:

28. As we have seen earlier, the 1st respondent in these appeals came up with W.P.No.1729 of 2009 praying for the issue of a writ of mandamus to direct the Tahsildar to effect mutation in the revenue records, by implementing the orders passed in Application No.1146 of 2002 in C.S.No.7 of 1958 dated 09-10-2002. This writ petition, as we have pointed out earlier, was filed in the first week of February, 2009 and the writ petition was allowed in the first week of March, 2009. To be précise, W.P.No.1729 of 2009 was allowed on 05-03-2009 within a month of filing of the writ petition. Obviously, the writ petition was disposed of at the stage of admission.

29. We cannot resist the temptation to record one disturbing trend of recent origin, in Courts mostly dealing with writ petitions. In olden days, if a case is made out, the writ petition will be admitted and rule nisi will be issued. But once a writ is admitted, it is liable to come in the queue. Since the queue has become long, we have invented a shortcut by ordering what we call as “Notice before admission”. When the queue of cases waiting under the category of “Notice before admission” became sufficiently long, a bypass was found out in the form of asking the Government Pleaders of the respective departments present in court to take notice and to get instructions. Therefore, many times even before the departments could realise what was happening, the writ petitions themselves get disposed of. Some times when the prayer made in the writ petition is only to give effect to some other order or decree of Court, we tend to pass orders at the stage of admission, in good faith that such type of cases need not wait in the queue for disposal. But the procedure so invented, for the purpose of facilitating early disposal of certain types of cases, which need not wait for a long time, has been proving to be disastrous.

30. Be that as it may, the claim of the 1st respondent herein for mutation of revenue records in his favour was based on an order passed in Application No.1146 of 2002 in C.S.No.7 of 1958. Therefore, it may be necessary to look into certain fundamental facts, since C.S.No.7 of 1958 itself has a chequered history. The series of orders passed in several proceedings in C.S.No.7 of 1958 actually constitute both a legal history and a legal mystery. In order to understand the same, it may be necessary to see the background.

History of C.S.No.7 of 1958:

31. It appears that a suit in O.S.No.130 of 1953 was originally filed on the file of City Civil Court, Hyderabad, by one Smt. Sultana Jahan Begum, daughter of Nawab Moinuddowla Bahadur seeking partition. The suit was withdrawn and transferred to the file of the High Court and numbered as C.S.No.7 of 1958. The plaint contained six schedules namely Schedules A to F, detailing both movable and immovable properties of which partition was sought. The main averments in the plaint read as follows:

“The defendant No.1 from the date of death of Nawab Moinuddowla to the present day is in possession of all the movable and immovable property as Amir-e-paigah and as eldest son. During which period he was paying the apportioned share as Atiyat shareholder from the revenues of jagirs till the abolition of Jagirs. And the defendant No.1, did not pay any profits from the above mentioned private properties nor has he given the accounts.

As per order and regulation, the jagirs of Hyderabad state were taken charge of and merged into the state. And due to this abolition of jagirs, the amirs and jagirdars are given commutation amounts under the supervision of jagir administrator from 15th April 1950. And the paigah jagir was also abolished. The parties herein are getting their due share from the government of Hyderabad from 15th April 1950.

After the abolition of jagirs & paigahs, the plaintiff demanded detailed lists and regular accounts of above mentioned property, from defendant No.1, who had possession over all the matruka of late Nawab Moinuddowla from the date of his death, i.e., 2nd Ramzan 1360 Hijri to this day, so that as per the Shariat Law these may be distributed and Shara share of the plaintiff may be given to her by the defendant No.1. But defendant No.1, even after repeated demands did not give any reply nor consented for the partition of matruka. But it came to know that defendant No.1 is trying to shift the movable matruka property of late Nawab Moinuddowla, out of India to the extent that his bad intention was disclosed when he was taking away out of India by Air valuable jewellery worth lakhs of rupees.

Plaintiff is the daughter of late Nawab Moinuddowla, and is married, and is residing with her husband in Secunderabad. She has no possession over any of the matruka property of Nawab Moinuddowla. And as Shariats right one is entitled to receive (14) Siham from the matruka of late Nawab Saheb, and she is also entitled that from the date of death of late father to the present day, demand the regular account of profit of property of the deceased, from the defendant No.1, as per attached lists. As defendant No.1, in the capacity of sharai ameen, he is bound to forward the detailed accounts of total property, movable and immovable of late Nawab Moinuddowla.

The defendants 23 to 26 are the wives of the deceased. Their dower debts are not payable nor the Nafka-i-iddat. As they are guzareyab of paigah, they are entitled to receive their shahrai share as other daughters, plaintiff and other sons.

Plaintiff is a pardanashin lady. To the extent of her knowledge she has annexed lists under the heads of Matruka property of late Nawab Moinuddowla. If any property movable or immovable is found in addition mentioned in the lists, in the possession of defendants, in that case also that will be partitioned according to shariat law, and that will also be included as matruka.

Plaintiff to the extent of her knowledge has given the details of the matruka property as cash and shares. In addition to these, if it is found in the custody of any defendant, then plaintiff is entitled to get the interest at the rate of Rs.4% per annum upon the profits already received till the date of obtaining decree or final execution of a decree. And this may be given from the share of that defendant from whose possession that property is found.

The valuation for the jurisdiction and for stamp as per list and articles annexed herewith to the extent of Siham-i-Shariah of the plaintiff is fixed as about Halli Seven Lakhs of rupees, upon which Rs.5,662/7/- is the stamp payable.

If it is found in extra to this, the stamp for that part will be payable, but plaintiff is not in a position except the property as per list annexed as A to F, there is no such movable or immovable property by which the court stamp can be paid. So the plaintiff is filing this suit in forma pauperis.

The suit property is in the jurisdiction of District Hyderabad, Secunderabad and City Civil Court, and the parties also lives in the jurisdictions of the above mentioned courts. Therefore the suit can be heard by your honourable court.

Defendant No.1, declined to partition the matruka property and the profits accrued from it, from 5th June 1952, and so this is the date for the appearance of this suit.

Therefore petitioner prays that:

The decree may be passed in favour of the plaintiff against the defendants with the cost of the court, for the partition of the matruka of late Moinuddowla for H.S. Rs.7 Lakhs as per prayer and the profit of interest as per plaint.”

32. It appears that to begin with, there were about 49 defendants in the suit. The Jagir Administrator of the Government of Andhra Pradesh was the 47th defendant. The Secretary, Finance Department, of the Government of Andhra Pradesh was arrayed as the 48th defendant.

33. Actually, the number of defendants became more than 49 due to the death of a few of them. But strangely the legal heirs of the deceased defendants such as defendants 4 and 5, were impleaded without showing them in Arabic numerals but showing that through alphabets under defendant numbers 4 and 5.

34. During the pendency of the suit, certain Interlocutory Applications were taken out by the plaintiff, whose particulars are as follows:

1) I.A.No.132 of 1958 for the appointment of a receiver for the protection of the suit property;

2) I.A.No.193 of 1958 for an injunction against defendant No.1 restraining him from disposing of the properties;

3) C.M.P.No.190/2 of 1954-55 for discovery, inspection and production of documents in the possession of the 1st defendant; and

4) I.A.No.126 of 1958 praying for recording a compromise and for passing a preliminary decree and the appointment of receivers with the powers set out in the memo of compromise.

35. The main suit C.S.No.7 of 1958 along with all the above mentioned four applications were disposed of by a learned Judge of this Court by a judgment dated 6-4-1959. It will be useful to extract the entire judgment as follows:
“Plaintiff withdraws her suit against the Government and the Jagir Administrator, defendants 47 and 48. The counsel appearing for these defendants press for costs.

The plaintiff also withdraws her case against defendants 27 to 46 and 49. This is because under the compromise the property in relation to which these defendants have been impleaded is not matruka property and no useful purpose will be served by continuing the suit against these defendants. Defendants 27 to 32 and 40 to 42, 44, 45 and 49 are absent as before. So also defendants 34, 39 and 46. Defendant No.33 is present in person and defendant No.43 is represented by his counsel. Defendant No.43, as a matter of fact has made an application I.A.No.83/59 that a decree so far as the relief for declaration contained in the compromise is concerned should not be drawn in terms of the compromise because in so doing the defendant’s interests are likely to be affected. The defendant admits that the property with which he is concerned is not included in the compromise schedule of matruka property which is to be partitioned amongst the heirs. It is not contained in schedule B property also in relation to which a declaratory relief is sought so far as defendant No.1 is concerned; nor in schedule C and D properties which according to the compromise are said to be the absolute properties of Nawab Laiquddin Khan and Nawab Kutubuddin Khan who are not at all parties to this suit. What the learned counsel contends is that in as much as his properties have not been mentioned in any of these schedules but are expressly excluded from schedule C, it is likely that this may give scope for dispute in any future action. But when it is plain that under the compromise or the decree that is to follow no right in the property with which this defendant No.43 is concerned has been granted, his fears are wholly unfounded. Schedule C property is not the matruka property under the present arrangement. Laiquddin Khan whose right or interest therein has been admitted is not a party to the suit or compromise and no declaratory decree in his favour would therefore be drawn in this case. It is not the contention of the defendant No.43 that in the suit for partition of matruka property his right require determination. He did not come to the court of his own accord as an interested party to the suit. He is a matter of fact, contested seriously application of the plaintiff against him under Order 1 Rule 10 CPC. Thus, if he were not impleaded certainly he would not have had any grievance that his right to his property was not being declared or recognised in this suit by way of decree or otherwise. Similarly, when the suit is being withdrawn against him he should have no such grievance. It is not open to him to say that since he has been impleaded his right to this property must necessarily be determined or that plaintiff cannot withdraw his suit against him even though she no longer lays any claim to his property. The plaintiff has under the provisions of Or.23 Rule 1 CPC an absolute right to withdraw her suit. If such a right is qualified in any manner it is only under the rule of equity that such withdrawal should not affect or prejudice the accrued right or interest of the defendant. There is no such apprehension in this case. Under these circumstances, the plaintiff cannot be precluded from exercising her right which is otherwise unfettered. All that the defendant can demand is his costs but this too is subject to the discretion of the court. In this way, the petition of defendant No.43 would fail. The suit against him as a remit of withdrawal would be dismissed with costs which are fixed at Rs.150/-.

Similarly, the plaintiff’s suit on account of her withdrawal would stand dismissed also against defendants 27 to 49. There remains the question of costs. Some of these defendants, as already pointed out, are absent. Having regard to the property involved and the fact that most of these defendants who are represented have not yet filed the written statements, I think it will be proper if Rs.150/- be allowed for those respondents who have not filed their written statements and Rs.200/- for those who have filed their written statements. This order of costs will govern the case of those defendants who are present and not those who have been shown as absent. In this way, only defendants, 33, 35, 36, 37, 38, 43, 47 and 48 would be entitled to costs according to the above mentioned rates.

So far as the other defendants are concerned, the suit has been adjusted by a compromise which is lawful and which has been duly verified. The parties have no objection to its being recorded.

On a perusal of the terms of the compromise it would appear that the decree which would follow is partly preliminary and partly final. In decrees for partition the provisions of Or.20 rule 18 CPC have their application. According to this the partition of lands assessed to payment of revenue would be effected by the Collector or any subordinate of his deputed by him in accordance with the provisions of Sec.54 CPC. The other property may be partitioned according to the directions of the court. Under Or.26 rule 13 it can be effected by a commissioner who in accordance with the directions of the court will effect partition following the procedure laid down in rule 14. The compromise takes into account the partition by a commissioner who will also be receivers as management etc, is entrusted to them. The provisions of Order 40 however must also be applicable to such receivers and the duties imposed by rule 3 therein shall devolve on them in relation to maintenance and periodical submission of accounts preferably at the end of each year and similar other acts. Thus, it would appear in the capacity of the commissioners, and receivers, they will be bound by the statutory duties and obligations under Or.26 Rule 14 CPC. Since they have been nominated by the parties under the compromise such nominee may continue as commissioner-receivers. But the powers that they will exercise shall not only be subjected to the supervision, directions and control of the court but also as far as possible within the framework of Order 26 Rule 14 CPC and Or.40 rule 3 CPC. Thus, all matters relating to allotment and award of sums and such other functions specified or contemplated by the compromise as are to be performed in the capacity of the commissioners shall be performed by following the procedure in Or.26 rule 14 and the other duties as receivers shall be discharged with due regard to the provisions of Order. 40. Execution of the decree and institution of suits, if necessary, will be carried out with due intimation and only after obtaining the directions and orders of this Court. Thus, while directing that the decree be drawn in terms of the compromise. I also order that the Commissioner-Receiver shall be governed by the above directions as well. The parties to the compromise agree that these directions are necessary to avoid any misconception or arbitrary or capricious exercise of powers by the receivers. It is however made clear here that should it become necessary that any land assessable to land revenue must be partitioned it will not be open to the commissionerreceivers to do the same but such partition shall be effected as under Order 20 rule 18(1) in accordance with the provisions of section 54 CPC. It is plain that the compromise declares the rights of various parties and also the matruka property available for distribution. No difficulty therefore would arise in the process of partition. The result is that it is hereby ordered that the compromise be recorded and a decree shall follow in terms thereof subject to the above directions. So far as schedule C, D and G are concerned there shall be no declarations made as the persons to whom these properties are allotted are not parties to the suit. In relation to schedule B property, a decree for declaratory relief shall be drawn only if defendant No.1 pays the requisite court fee therefor. Subject to this and also the order passed on 15-1-1959 and directions given above, decree be drawn in terms of the compromise.

All the interlocutory orders in the suit shall stand vacated. The plaintiff insists on the continuation of the proceedings under I.A.No.193/58. So far as this proceeding is concerned, the matter shall be disposed of after the counter is filed and arguments are heard. That petition may be posted in due course for final orders.

Application Nos.84 and 85 of 1959

This suit has been disposed of on the basis of a compromise dated 19- 12-1958 entered into between the parties which was duly verified then. Latifuddin Khan defendant No.4 died during the pendency of the suit leaving a wife and a concubine and children from both of them. Defendants 4 (b) to (j) are the children from his wife and defendants 4-(a) and (1) to (o) are children from defendant No.4 (k), the concubine Aasia Begum. According to the compromise defendants 4 (a) to (d) get their legal share in the matruka and so in the commutation amount but defendants 4(a) and her children get only a share in the commutation amount. Out of these children some are minors. Defendant No.4 (o) was a posthumous son of defendant No.4 who could not be brought on record within time. He was thought of only when defendant No.4 (m) his sister died and he was actually brought on record after the compromise was entered into and was being verified. At the time of verification his guardian had applied for leave to enter into a compromise. Though in the petition the name of defendant No.4 (o) was left out, the accompanying affidavit however contained prayer that the compromise be recorded and leave be granted to enter into a compromise on behalf of the minor defendants 4(b) to 4(j) 4 (n) and 4 (o). An order was passed on this petition on 19-12-1958 allowing the prayer. Thereafter it appears the compromise duly signed on behalf of this minor has not been filed nor a certificate of the lawyer contemplated by the provisions of law was produced. This is due to some inadvertent mistake which was discovered only at the time of decree. The parties concerned have therefore now come with a supplementary compromise which according to the prayer contained should be deemed to be part of the original compromise on which the decree has been based. This has been signed by plaintiff, defendant No.1, by the counsel and guardian of defendant No.4 (o), by the counsel and guardian of defendant Nos.4 (b) to (j), by the counsel and guardian of defendant No.21 and counsel on behalf of defendant No.22. Mr. Ansari on behalf of defendant No.21, Mr. Raman on behalf of defendant No.4 (b) to (j) and (l and (n) and Mr. Srikrishna for defendant No.4 (o) Mr. Srikrishna, defendant No.21 in person and Mir Liak guardian of defendant No.21, Aktar Jeha Begum and her counsel Mr. Nurulla Ansari and Mr. Rai on behalf of defendants 4 (b) to (j) and (l) and (n) verify the signature and the contents of this compromise. A stencil copy of the original compromise has been filed and that too has been signed by the plaintiff and the defendants referred to above. Mr. Ahsan representing defendants 24, 25-a and 26, Mr. Ghouse Mohammad for defendants 2, 3, 6, 7, 8, 10, 11 and 12, Mr. Jaleel Ahmed on behalf of defendant 13, Mr. Srikrishna appearing for defendants 16, 17,. 18 and 19, Mr. Nurulla Hussain for defendants 20 and 21, Mr. Rai Sadguru Perhad on behalf of defendant No.22 and Wajhuddin Khan guardian ad litem of defendant No.22, Dawoodunnisa Begum who is present in person, have no objection, if this compromise also be recorded. The present compromise, it may be noted, is in no way inconsistent with the previous compromise. Since by an inadvertent mistake the counsel appearing for defendant No.4 (o) had failed to file a certificate and also take the signature of the guardian on the original compromise the present proceeding became necessary.

As the minor gets the same benefit as the other minors of his status under the compromise and the compromise is beneficial to him in so far as he gets a right in the commutation amount necessary leave to enter into compromise is given. As the compromise is a lawful adjustment and disposes of the entire claim, it can be recorded.

It is, therefore, ordered the present compromise also be recorded and treated as supplemental to the previous compromise and the decree so far as defendant No.4(o) is concerned be also drawn in terms of the compromise.”

The decree passed and properties covered:

36. There were six schedules to the plaint which contained the details of the suit properties. The memorandum of compromise on the basis of which a decree was passed on 06-04-1959 concluded that the properties mentioned in Schedule-A to the memo of compromise alone constituted the matruka properties. This Schedule-A comprised of about 254 items.

37. Though it is little tedious, we would bring on record, the entire Schedule-A to the memo of compromise in C.S.No.7 of 1958, which reads as follows:

SCHEDULE “A” List of Property

S.No. Property Division Old No. New No.
1. Jahanuma Garden 469-572 525-528
III Division 463-465 423-425
Out Side 570-71
2. – Do – Bagh Imli Mahal 72-98
3. Moin Bagh Shamshahabad 575 29
4. Shamshabad
5. Akbar Bagh, Toli Chowki 150,149, 155/1
6. -do- -do- 150/2, 148/1
7. Lallaguda 510, 513, Bunglows
8. Bagh Ghouse Khan, Saroornagar
9. Saroornagar Palace
10. Bagh Moosa Rahmoo 220
11. Asifnagar 615
12. Tehniyat Bagh, Ambarpet 1053
13. Amjad Dowla Garden 1651-1652 18-19
14. Bungalow No.25, Bolaram 25
15. Bunglow No.36, Bolaram 36
16. Khana Bagh, Shadi Khana 791-787 625-656
17. Devdi City Shah Gunj 725-767 590-631
18. Misry Gunj and Moinpura 651
19. Havali Badruddin Khan
20. Kancha Balamari Near Narkodah
21. Zamboor Khana, out of Fateh Darwaza
22. Shaker Gunj
23. Syed Omerguda, Near Jahanuma
24. Grass Garry Jahanuma
25. Aurangabad
26. Maktah Bahboodnagar
27. Toolkunta
28. Shah Gunj III Division 1195 883
29. -do- -do- 1196 884
30. -do- -do- 1201 1016
31. -do- -do- 1203 1017
32. -do- -do- 1204 889
33. -do- -do- 1265 —
34. -do- -do- 1311 1113
35. -do- -do- 1312 1114
36. -do- -do- 1115
37. -do- -do- 1116
38. -do- -do- 1117
39. -do- -do- 1118
40. -do- -do- 1118/1
41. -do- -do- 1119
42. -do- -do- 1120
43. -do- -do- 1121
44. -do- -do- 1313 1122
45. Shah Gunj 665 511
46. -do- 681 528
47. -do- 682 529
48. -do- 682/1 529/1
49. -do- 682/2 529/2
50. -do- 682/3 529/3
51. -do- 682/4 529/4
52. -do- 682/5 529/5
53. -do- 682/6 529/6
54. -do- 682/7 529/7
55. -do- 682/8 529/8
56. -do- 682/9 529/9
57. -do- 682/10 529/10
58. -do- 682/11 529/11
59. -do- 682/12 529/12
60. -do- 682/13 529/13
61. -do- 682/14 529/14
62. -do- 682/15 529/15
63. -do- 682/16 529/16
64. -do- 682/17 529/17
65. -do- 682/18 529/18
66. -do- 682/19 529/19
67. -do- 682/20, 21 529/20, 21
68. -do- 682/22 529/22
69. -do- 529/23
70. -do- 704 551
71. -do- 560 705
72. -do- 714-716 578-581
73. -do- 717 582
74. -do- 718 583
75. -do- 719 584
76. -do- 720 585
77. -do- 721 586
78. -do- 722 587
79. -do- 723-724 588-589
80. -do- 725/1 590/1
81. -do- 726 591
82. -do- 727 592
83. -do- 728 593
84. -do- 729, 729/1 594-595
85. -do- 730 596
86. -do- Zinc Sheets 732 598
87. -do- 733 599
88. -do- 734 600
89. -do- 735 601
90. -do- 736 602
91. -do- Near Kilvath 738-740 604
92. -do- -do- 741 605
93. -do- -do- 742 606
94. -do- -do- 743 607
95. -do- -do- 744 608
96. -do- -do- 745 609
97. -do- -do- 746 610
98. -do- -do- 747 611
99. -do- -do- 748 612
100. -do- -do- 749 613
101. -do- -do- 753 617
102. -do- -do- 766 630
103. -do- -do- 765 631
104. -do- -do- 767/1 631/1
105. -do- -do- 767/2 631/2
106. -do- -do- 767/3 631/3
107. -do- -do- 767/4 631/4
108. -do- -do- 767/5 631/5
109. -do- -do- 767/6 631/6
110. -do- -do- 767/7 631/7
111. -do- -do- 767/8 631/8
112. -do- -do- 767/9 631/9
113. -do- -do- 767/10 631/10
114. -do- -do- 767/11 631/11
115. -do- -do- 767/12 631/12
116. -do- -do- 767/13 631/13
117. -do- -do- 767/14 631/14
118. -do- -do- 767/15 631/15
119. -do- -do- 767/16 631/16
120. -do- -do- 767/17 631/17
121. -do- -do- 767/18 631/18
122. -do- -do- 767/19 631/19
123. -do- -do- 767/20 631/20
124. -do- -do- 767/21 631/21
125. -do- -do- 767/22 631/22
126. -do- -do- 767/23 631/23
127. -do- -do- 631/23/1
128. -do- -do- 631/23/2
129. -do- -do- 631/24
130. -do- -do- 768 632
131. -do- -do- 769 633
132. -do- -do- 770 634
133. -do- -do- 771 635
134. -do- -do- 772 636
135. -do- -do- 773 637
136. -do- -do- 774 638
137. -do- -do- 775 639
138. -do- -do- 776 640
139. -do- -do- 777 641
140. -do- -do- 778 642
141. -do- -do- 779 643
142. -do- -do- 780 644
143. -do- -do- 781 645
144. -do- -do- 782 646
145. -do- -do- 783 647
146. -do- -do- 784 648
147. -do- -do- 785 649
148. -do- -do- 786 650
149. -do- -do- 651
150. -do- -do- 651/1
151. -do- -do- 651/2
152. -do- 3rd Division 787/3 652/3
153. -do- -do- 787 652
154. -do- -do- 788 653
155. -do- -do- 789 654
156. -do- -do- 790 655
157. -do- -do- 652/1
158. -do- -do- 652/2
159. -do- -do- 652/3
160. -do- -do- 791 656
161. -do- -do- 792 657
162. -do- -do- 795 660
163. -do- -do- 796 661
164. Misry Gunj Feel Khana, II Division 221 592-593
165. -do- -do- 1303 14
166. -do- -do- 1304 15
167. -do- -do- 1305 16
168. Police Naka Amir-e-Kabeer 219 560
169. Jahan-numa, II Division 651-659 1-5
170. -do- -do- 660-666 6-10
171. -do- -do- 670-671 13
172. -do- -do- 672-674 15-16
173. -do- -do- 675 17
174. -do- -do- 676-677 18-19
175. -do- -do- 678 20
176. -do- -do- 678/1 21
177. -do- -do- 679 22
178. -do- -do- 680 23
179. -do- -do- 681 24
180. -do- -do- 682 25
181. -do- -do- 683-684 26-27
182. -do- -do- 685-686 28-29
183. -do- -do- 687 30
184. -do- -do- 688 31
185. -do- -do- 689 32
186. -do- -do- 690 33
187. -do- -do- 691 34
188. -do- -do- 692-693 35-37
189. -do- -do- 694 38-40
190. -do- -do- 694/1 42-43
191. -do- -do- 695-696 44-46
192. -do- -do- 697-711 47-49
193. -do- -do- 578-592 60-74
194. -do- -do- 75-78
195. -do- -do- 593-608 79-72
196. -do- -do- 609-612 93, 93/1
197. -do- -do- 797/1 94
198. -do- -do- 613-627 95-107
199. -do- -do- 640-641 112
200. -do- -do- 643-648 113-117, 117/1
201. -do- -do- 794-795 118-110
202. -do- -do- 120
203. -do- -do- 797 121
204. -do- -do- 124-125
205. -do- -do- 126
206. -do- -do- 745 172
207. -do- -do- 560 41/1
208. -do- -do- 41/2
209. -do- -do- 41/3
210. -do- -do- 41/4
211. -do- -do- 41/5
212. -do- -do- 41/6
213. -do- -do- 41/7
214. Jahan-numa, III Division 639 111
215. -do- -do- 636 108
216. -do- -do- 637-638 109-110
217. -do- -do- 108/1
218. -do- -do- 117/2-3
219. Noozoldaran III Division, outside Misry Gunj
220. -do- Sana Baigh 220 561
221. -do – Inside Rekab Gunj Near Kelwat
222. -do- Bazar Khas Shah Gunj
223. -do- outside Shamsheer Gunj
224. -do- Jahnuma
225. -do- Parwarsh Gunj Siddiambar Bazar
226. Chowk Maharaj Gunj
227. III Division Inside houza Jeloalli
228. Bazar Amir Gunj Purana Pull
229. III Division Inside Shakar Gunj
LIST OF MAKTAS (UNDER APPEAL WITH REVENUE BOARD)
230. Maktah Bahdaru Ali
231. -do- Ootapalli
232. -do- Shivarampalli
233. -do- Balapoor
234. -do- Raidurg
235. -do- Sough Bowli
236. -do- Somajiguda
237. -do- Nawab (town)
238. -do- Mama (town)
239. -do- Bagh Kakgud
240. -do- Hajiali Gud
241. -do- Permit Shah Guda
242. -do- Muzhar Guda
243. -do- Bagh Moosa Lamhoo
244. -do- Amjad Nagar
245. -do- Mohammed Nagar
246. -do- Sangi Guda
247. -do- Ali Sahab (town)
248. -do- Chitaguddah
249. -do- Yellakur
250. -do- Yerwaguda
251. -do- Kol Bowli
252. -do- Shamsguda
253. -do- Rai Samande
254. -do- Roshan Bowli

Claim of the 1st respondent:

38. The claim of the 1st respondent in his writ petition in W.P.No.1729 of 2009 was that the decree holders under the preliminary decree dated 06-04-1959 in C.S.No.7 of 1958 assigned their rights in his favour and in favour of others on 01-10-2002, in respect of land of an extent of Ac.143.00 guntas, forming part of Survey Nos.1 to 37, 39 to 43 and 45 to 49 of Raidurg village, Serilingampalli Mandal, Ranga Reddy District; that the deed of assignment was accepted by this Court by an order dated 09-10- 2002 in Application No.1146 of 2002 and that thereafter this Court passed an order on 26-12-2003 in Application Nos.1144 to 1147 of 2002 and Application No.1409 of 2003.

39. It may be interesting to note that what was claimed by the 1st respondent herein, in his Application No.1409 of 2003 was to pass a final decree in C.S.No.7 of 1958, in respect of land in Survey No.46, measuring about Ac.84.30 guntas in Raidurg village, Serilingampalli Mandal, Ranga Reddy District. In the prayer portion in Application No.1409 of 2003, the 1st respondent indicated that the land in Survey No.46 is to be correlated to Item-234 of Schedule-A. But Schedule-A in entirety has been extracted by us in the preceding paragraph. Item-234 of Schedule-A as contained in the decree dated 06-04-1959 merely stated “Maktah Raidurg”. Neither any survey number, nor the extent of land nor even boundaries were indicated in Item-234. In addition, the common heading given to items-230 to 254 was “LIST OF MAKTAS (UNDER APPEAL WITH REVENUE BOARD)”.

40. In fact, it is stated in the judgment rendered on 06-04-1959 in C.S.No.7 of 1958 that it was a preliminary-cum-final decree. Clause 4(g) of the decree made it clear that the Commissionerscum-Receivers were entitled, for the purpose of effecting the distribution of properties among the persons entitled thereto, to sell all the properties except Items-230 to 254 in Schedule-A. The decree in respect of Items 230 to 254, was made subject to the restoration or release of the same by the Government in favour of Paigah Asman Jahi.

41. In the light of such a clear cut exclusion, in the decree itself and also in the light of the fact that item-234 in Schedule-A did not contain any survey number, description, or extent of land, we do not know how the 1st respondent herein could have sought a final decree in respect of S.No.46 to the extent of Ac.84.30 guntas.

42. In addition, the judgment in the suit very clearly indicated that the State Government, which was impleaded as the 48th defendant, was given up and that the suit was dismissed as against the State Government.

43. But without reference to all this, the 1st respondent managed to get an assignment in his favour, recorded by an order dated 09-10-2002 in Application No.1146 of 2002 and also got a final decree on 26-12-2003 in Application No.1409 of 2003. This shows that the orders dated 09-10-2002 and 26-12-2003 were obtained completely by fraud. At the cost of repetition, it should be pointed out,–

a) that the 1st respondent managed to get a deed of assignment executed in his favour by the decree holders in C.S.No.7 of 1958, despite the fact that clause 4 (g) of the decree did not enable even the Commissioner-cum-Receiver to sell the land till the lands were released and restored by the Board of Revenue;

b) that the 1st respondent managed to identify a non-descript property and get a final decree in his favour, in the sense that when the original decree merely described Item 234 of Schedule-A as “Maktah Raidurg”, the 1st respondent included the whole village of Raidurg and identified Survey No.46 in the village; and

c) that despite the fact that the suit was dismissed as against the State Government, the 1st respondent sought to compel the revenue authorities to recognize his title, even without showing whether or not, the Board of Revenue ultimately released the Maktah property in favour of the decree holders.

44. As we have stated earlier, there was no decree against the Government, as the suit itself was dismissed against the Government. Therefore, the 1st respondent herein could not have executed the decree against the Government in a civil court. Consequently, the Government were not bound to effect mutation in the revenue records, thereby forfeiting any claim that they may have, to the property. On a final decree obtained in the above fashion, in relation to a property, which could not be described in the plaint schedule, the 1st respondent obtained a direction in W.P.No.1729 of 2009. This is fraudulent. Since fraud vitiates all solemn acts, the 1st respondent cannot seek to enforce such a final decree through the machinery available to this court in the contempt jurisdiction.

45. The learned senior counsel appearing for the 1st respondent highlighted the abortive attempts made by the Government of Andhra Pradesh to implead itself as a party to the Civil Appeal in C.A.No.1121 of 2008 filed by a third party and the dismissal of the appeal filed by the Government of Andhra Pradesh in OSA (SR) No. 2116 of 2011. Therefore, he contended that the Government of Andhra Pradesh is now bound by the final decree.

46. But, we do not think so. First of all there was no decree as against the Government of Andhra Pradesh. The judgment dated 06-04-1959 passed in C.S.No.7 of 1958, which we have extracted above, shows that the suit was dismissed as against the Government of Andhra Pradesh. Once a suit is dismissed as against a party at the stage of preliminary decree, we do not know how a final decree will bind the party. In fact, the Government appears to have been ill-advised to file OSA (SR) No.2116 of 2011 with a delay of 2633 days, without realizing that there was no preliminary decree against the Government. In such circumstances, the dismissal of the delay condonation petition filed by the Government of Andhra Pradesh cannot make the Government of Andhra Pradesh a judgment debtor.

47. As we have pointed out earlier, the Contempt Case out of which the present appeals arise, were born out of the alleged failure of the Tahsildar to implement the orders of this Court in Application No.1146 of 2002, as directed by this Court in W.P.No.1729 of 2009. The affidavit in support of W.P.No.1729 of 2009, which contains the basis of the claim of the 1st respondent, shows that the averments therein are actually castles in the air. In paragraph 2 of his affidavit in support of W.P.No.1729 of 2009, the 1st respondent claimed that C.S.No.7 of 1958 was filed by one Smt. Saheb Jahi Sultan Jahan Begum, in respect of the matruka properties including the land admeasuring Ac.209.00 guntas in Survey Nos.1 to 49, situated in Raidurg village, Serilingampalli Mandal, Ranga Reddy District, listed at S.No.234 in Schedule-A of the plaint. But Item 234 in Schedule-A to the plaint did not contain (i) either the extent of land, (ii) or the survey number, (iii) or the boundaries and (iv) or any other measure of identification of the property. In addition, this Item-234 was part of a list of several properties from S.Nos.230 to 254 listed under the caption “LIST OF MAKTAS (UNDER APPEAL WITH REVENUE BOARD)”. Therefore, the very foundation of the claim of the 1st respondent in W.P.No.1729 of 2009 was illusory.

48. In paragraph 2 of his affidavit in support of W.P.No.1729 of 2009, the 1st respondent also claimed that a preliminary decree was passed by this Court and the decree holders executed a deed of assignment in his favour, in respect of the land of an extent of Ac.143.00 guntas forming part of Survey Nos.1 to 37, 39 to 43 and 45 to 49.

49. But clause 4 (g) of the decree reads as follows:
“(4) that the Commissioners-Receivers shall,–
(a)……..
(b)…….
(c).……
(d)…..
(e)…..
(f)…..
(g) for the purpose of effecting the distribution of the properties among the persons entitled thereto, the Commissioners-Receivers shall have powers to sell the said properties by public auction and exercise all powers necessary for effecting the division of the same between among defendants 2 to 10 and 14 to 22, each son getting 2/33 and daughter getting 1/33 share in the properties mentioned in Schedule-A except Items-230 to 254 of this schedule and the items of properties allotted to the plaintiff, defendant Nos.2 to 22 will get their share namely each son getting 2/35 and each daughter getting 1/35 from the arrears of income, future income, compensation or commutation or sale proceeds of the items 230 to 254 of Schedule-A detailed under the head of “Maktas in case the same are restored or releasing in favour of Paigah Asman Jahi”.

50. Therefore, there could not have been an assignment, by the decree holders, especially when the Commissioners-Receivers themselves were restrained from dealing with these items.

51. Once the entire foundation upon which the claim of the 1st respondent is built, is found to be shallow, illusory and fraudulent, all the orders built upon such foundation, should fall like a pack of cards. We have not heard of an entire village without any description including survey number and extent being cited as one of the items in a suit for partition and we have certainly not heard of parties alienating indeterminate shares pursuant to a preliminary decree, which also did not cover these items.

52. It must be pointed out that there are lot of applications, writ petitions, Original Side Appeals, Miscellaneous Petitions, etc., arising out of C.S.No.7 of 1958, which are still pending in a huge batch of cases. It is only due to the fact that the entire batch has been specially assigned to this Bench, that we have been able to take judicial notice of all the above facts including the averments in the plaint, the judgment in the suit and the list of properties that formed the subject matter of the suit. We are conscious of the fact that the learned Judge, against whose orders the present appeals have been filed, did not have the benefit of the records in C.S.No.7 of 1958. But we have had the benefit of the records in that suit, since all matters relating to the said suit have been assigned specially to this Bench by the orders of the Hon’ble Chief Justice.

53. It is quite unfortunate that public interest was sacrificed in this case, with a series of orders being passed in C.S.No. 7 of 1958 in favour of the 1st respondent from the year 2002, without reference to the original records in C.S.No.7 of 1958. It is this series of orders, which led to a chain, with one leading to the other and the other leading to a third and so on and so forth which has eventually left the Government in total wilderness. The Government against whom the suit was dismissed, at the instance of the plaintiff, has now become a major judgment debtor. The lis between the owners and the Government was left undecided in the suit and the mere division of the property now in dispute (Item 234) was made subject to the orders of the Board of Revenue. If that is so, no Court can compel the Government to give up their rights and sacrifice the huge extent of about 100 acres in a prime locality in favour of third parties to the detriment of public interest. Hence, the Letters Patent Appeal and the Contempt Appeal are liable to be allowed. Accordingly, they are allowed and the order of the learned Judge set aside.

As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.

________________________
V. RAMASUBRAMANIAN, J
______________
N. BALAYOGI, J

Date: 16-08-2018

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]]> https://bnblegal.com/landmark/s-tirupathi-rao-vs-m-lingamiah/feed/ 0 S.Ramesh Vs. State Through the Inspector of Police & Ors. https://bnblegal.com/landmark/s-ramesh-vs-state-through-the-inspector-of-police-ors/ https://bnblegal.com/landmark/s-ramesh-vs-state-through-the-inspector-of-police-ors/#respond Thu, 16 Apr 2020 08:20:56 +0000 https://bnblegal.com/?post_type=landmark&p=252964 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ORDERS RESERVED ON: 16.08.2018 ORDERS PRONOUNCED ON : 21.08.2018 DATED: 21.08.2018 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Crl.O.P.(MD)Nos.9083 of 2017 and 8686 of 2017 and Crl.MP(MD)Nos.6166, 6167, 7341, 5878, 5879, 7340 and 7342 ofof 2017 Crl.O.P.(MD)Nos.9083 of 2017 S.Ramesh … Petitioner Vs. 1.State Through the Inspector of […]

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]]> BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

ORDERS RESERVED ON: 16.08.2018
ORDERS PRONOUNCED ON : 21.08.2018
DATED: 21.08.2018

CORAM

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.(MD)Nos.9083 of 2017 and 8686 of 2017
and
Crl.MP(MD)Nos.6166, 6167, 7341, 5878, 5879, 7340 and
7342 ofof 2017

Crl.O.P.(MD)Nos.9083 of 2017

S.Ramesh … Petitioner
Vs.

1.State Through the Inspector of Police,
K.Pudur Police Station, Madurai.
(In Crime No.573 of 2016)

Vinoth John Prakash (Died)

2.Dr.S.Gurushankar …Respondents

(Interpored the petitioner as second respondent in the place of Vinod of John Prakash (died) as per order of this Court made in CrlMP(MD)No.6807 of 2017 dated 02.08.2017) PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, to quash the charge sheet in C.C.No.338 of 2016 on the file of the learned Judicial Magistrate No.VI, Madurai, which pertains to the Crime No.573 of2016, on the file of the 1st respondent and as against this petitioner.

For Petitioner: Mr.Mr.Ajmal Khan, Senior Counsel, for P.Suresh Kumar,

For respondent No.1 : Mr.K.Suyambulinga Bharathi For respondent No.2 :Mr.K.Subramaniam, Senior Counsel, for Mr.S.Ramesh Crl.O.P.(MD)Nos.8686 of 2017 Arun … Petitioner Vs.

1.State Through the Inspector of Police, K.Pudur Police Station, Madurai.

(In Crime No.573 of 2016)

Vinoth John Prakash (Died)

2.Dr.S.Gurushankar …Respondents

(Interpored the petitioner as second respondent in the place of Vinoth of John Prakash (died) as per order of this Court made in CrlMP(MD)No.6808 of 2017 dated 02.08.2017) PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, to call for the records pertaining to the charge sheet in C.C.No.338 of 2016 pending before the learned Judicial Magistrate No.VI, Madurai, in Crime No.573 of2016, on the file of the 1st respondent and quash the same as illegal as against this petitioner.

For Petitioner : Mr.T.Lajapathy Roy
For respondentNo.1 : Mr.K.Suyambulinga Bharathi
For respondent No.2 :Mr.K.Subramaniam, Senior Counsel, Mr.S.Ramesh

:COMMON ORDER

These petitions have been filed by A1 and A2 in CC No.338 of 2016, on the file of the learned Judicial Magistrate No.VI, Madurai, seeking to quash the final report filed by the first respondent.

2.The complaint was originally given by one Vinoth John Prakash, who was the Manager of Dr.S.Guru Sankar. He died during the pendency of these petitions and in his place Dr.S.Guru Sankar substituted himself as a party. The said Dr.S.Guru Sankar and S. Ramesh, who is A1 in the above CC, are brothers and they are the sons of Dr.N.Sethuraman.

3.The complaint was lodged by the Manager of Dr.S.Guru Sankar on 16.04.2016 to the first respondent Police to the effect that on 16.04.2016, at about 9.00 am A1 along with 3 other persons came to the property belonging to Dr.S.Gurushankar along with a Tractor and JCB machine and committed trespass into the property and threatened those present in the property and also caused damages to the property. On the said complaint, the first respondent registered an FIR in Crime No.573 of 2016 for the offences under Sections 447 and 506(ii)IPC. Subsequently, the case was taken for investigation and 11 witnesses were examined by the 1st respondent and a final report came to be filed on 04.08.2016 against 4 persons for the offences under Section 447, 427 and 506 (ii) r/w Section 34 IPC. The said final report is the subject matter of challenge in these petitions.

4.The learned Senior Counsel Mr.Ajmal Khan, appearing for the petitioner in Crl.OP(MD)No.9083 of 2017 made the following submissions: The 2nd respondent, who is the brother of the petitioner had an ill will against him and there are 4 civil suits in OS Nos.224 of 2010, 14 of 2011, 320 of 2011 and 60 of 2015 that are pending between the parties with regard to the trusteeship in SR Trust and therefore the 2nd respondent had motive to foist a false case against the petitioner, who is his brother and the entire complaint is the result of mala fide, on the part of the 2nd respondent, who has maliciously instituted the proceedings with an ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to private and personal grudge.

The complaint was initially given through an employee of Dr.S.Gurushankar and after his death Dr.S.Gurushankar himself has come into the picture in order to persecute the petitioner.

A reading of the final report would clearly show that no offence has been made out as against the petitioner.

?No offence has been made out under Section 447 IPC, since the land question is situated right in front of the petitioner?s house and he only cleaned the bushes including Seemai Karuvelam (Prosopis Juli Flora), garbage, medical waste and rubbish in the said land with an impression that the land belongs to Maha Seemam Trust, wherein his father is the President and with the knowledge of his father. Therefore, the learned Senior Counsel submits that to attract the provision of Section 441, an entry into the property must be with an intention to commit an offence or to intimidate, annoy any person in possession of the property. Since the petitioner did not enter into the property with any of these intentions, the ingredients of the criminal trespass is not attracted in this case and therefore no offence is made out under Section 447 of IPC. The learned Senior Counsel further contended that the offence under Section 427 is also not made out in this case, since the petitioner did not commit any mischief in the property and did not cause any loss or damage to the property and he had merely cleared the Seemai Karuvelam trees, garbage, medical waste and rubbish in the property, which according to the petitioner belongs to the Trust run by this father.

The learned Senior Counsel submitted that an offence under Section 506 (ii) IPC has also not been committed in this case, since to constitute an offence in the said provision, a mere threat is not enough and there must be an act in pursuance to the said threat, without which an offence of criminal intimidation is not attracted. In order to substantiate the said contention, the learned Senior Counsel relied upon the judgment of this Court in G.Paramasivam and Another V. Dy.

Commissioner of Police and Others, reported in 2016 (1) TNLR 489 (MAD). The learned Senior Counsel also brought to the notice of this Court Section 95 of the Indian Penal Code, which provides that nothing is an offence, if the offence is so trivial in nature, which no person of ordinary sense and temper would complain of any harm. The learned Senior Counsel would contend that the offence that has been attempted to be projected in this case is so trivial in nature and that it absolutely did not cause any harm to the second respondent and therefore, the accused persons need not undergo a fullfledged trial for such trivial act.

The learned Senior Counsel also brought to the notice of this Court the judgment of the Hon?ble Supreme Court in State of Haryana and others Vs.Bhajan Lal and others reported in 1992 Supp (1) SCC (335). In the said judgment, the learned Senior Counsel relied upon the clause 5 and 7 in paragraph 102, wherein, the Supreme Court had given certain guidelines that can be taken into consideration in order to quash the proceedings. Finally, the learned Senior Counsel would contend that the entire proceedings is a clear abuse of process of law and in order to render substantial justice, the final report has to be quashed.

5.Mr.T.Lajapathy Roy, learned Counsel appearing for the petitioner in CrlOP(MD)No.8686 of 2017, apart from adopting of arguments made in CrlOP(MD)No.9083 of 2017 by Mr.A.Ajmal Khan, learned Senior Counsel, also added the following submissions:

?The parties were not aware of the exchange deed dated 26.10.2015, which is relied upon by Dr.S.Guru Sankar to claim ownership over the property and the very deed of exchange is a void document, which goes against the very interest of the public Trust and therefore, when the very ownership of the property by Dr.S.Gurushankar is under question, there is no question of offence of criminal trespass being committed by the petitioners. ??The learned Counsel also made it very clear that none of the parties are claiming any ownership over the said property.

The learned Counsel also brought to the notice of this Court that Seemai Karuvelam trees were sought to be removed from the properties including the private properties, pursuant to the judgment of a Division Bench of this Court, since it was considered dangerous and therefore, the removal of these trees cannot constitute an offence of mischief.

In order to develop his arguments on the said point, the learned Counsel also brought to the notice of this Court Section 81 IPC, which provides that an act, which would otherwise be a crime may in some cases be excused, if the person accused can show that it was done not only in order to avoid consequences, which cannot be otherwise be avoided and on good faith, necessary in order to prevent or avoid more harm to the person or the property.

The learned Counsel relied upon illustration (b) of Section 81 IPC in order to substantiate his arguments. Therefore, the learned Counsel would submit that removal of Semmai Karuvelam trees, was done with an intention to prevent more harm to the property in which, it was standing and also adjacent properties.

6. The Government Advocate K.Suyambulinga Bharathi representing the first respondent police would submit that 11 witnesses were examined in this case and the witnesses have spoken about the incident. That apart, LW7, who is the Village Administrative Officer, has specifically stated that the property belongs to Dr.S.Gurushankar. Likewise, LW11, who is the Sub Registrar has also stated that the property belongs to Dr.S.Gurushankar. Therefore, there is no dispute with regard to the ownership of the property. The learned Government Advocate would further state that the police have investigated the case thoroughly and have laid charge sheet before the Court for the offences under Sections 447, 427 and 506(ii) r/w 34 IPC and a prima facie case has been made out, in order to frame charges against the petitioners and there is absolutely no ground to quash the proceedings.

7. The learned Senior Counsel Mr.K.Subraminam, representing the learned Counsel for the 2nd respondent Dr.S.Gurushankar made the following submissions.

No one is allowed to take law into his own hands and admittedly Mr.S.Ramesh is not the owner of the property and he has no right to enter into other person?s property with Tractor and JCB machine and cause damage to the property.

The petitioners are not entitled to challenge the title of Dr.S.Gurushankar, in this proceeding and they have not chosen to challenge the title before the appropriate Court of Law till date.

The statements taken by the Police from the witnesses clearly reveals prima facie case against the petitioners and other 2 accused persons and the factual disputes with regard to whether any mischief was done or criminal intimidation took place are matters for trial and the same cannot be adjudicated in 482 Proceedings.

Admittedly, there is previous enmity between A-1 and respondent No.2 and keeping this previous enmity in mind, A-1 along with 3 other persons had trespassed into the property and caused damage to the property. The learned Senior Counsel relied upon the following judgments in order to substantiate his arguments that disputed questions of facts cannot be gone into in a petition under Section 482 CrPC.

HMT Watches Limited Vs. M.A.Abida and Another, reported in (2015) 11 SCC 776; Taramani Parakh Vs. State of Madya Pradesh and others, reported in (2015) 11 SCC 260; and Homi Rajvansh Vs. State of Maharashtra and others, reported in (2014) 12 SCC 556.

8. This Court has carefully considered the arguments made on either side and had also taken into consideration the materials that have been placed on record.

9.Admittedly, there are pending civil proceedings between the petitioner in CrlOP(MD)No.9083 of 2017 and the 2nd respondent Dr.S.Gurushankar, in which other family members are also parties, concerning the trusteeship over SR Trust. Therefore, there is already a strained relationship between the petitioner in CrlOP(MD)No.9083 of 2017 and the second respondent. The petitioner in CrlOP(MD)No.9083 of 2017 is none other than the elder brother of the 2nd respondent and both of them are sons of Dr.N.Sethuraman, who is the founder of the public charitable trust namely SR Trust, which runs the Multi Speciality Hospital named Meenakshi Mission Hospital and Research Centre at Madurai. Originally both the petitioner and the 2nd respondent were trustees in the said SR Trust. It is also an admitted case that the property, which is now claimed by the 2nd respondent, originally belonged to a Trust called as Maha Semam Trust, in which, Dr.N.Sethuraman is the founder and by virtue the deed of exchange dated 26.10.2015, the said Maha Semam Trust exchanged the property in question with Dr.S.Gurushankar and thereby Dr.S.Gurushankar is claiming ownership over the property in question.

10.This Court at the outset wants to make it very clear that title over the property cannot be gone into in these proceedings and this Court will not deal with any of the arguments relating to the title over the property and the same is relegated to be adjudicated before the appropriate forum by the parties concerned.

11. It is also an admitted case that the house of the petitioner in Crl OP(MD)No.9083 of 2017 is situated right in front of the property in dispute. This property does not belong to any 3rd party, but it used to belong to the trust run by the father and therefore, the proximity to the property and entry into it under normal circumstances would not be considered to be a trespass. However, since there is a deep rooted animosity between the petitioner and the 2nd respondent, the single act done by the petitioner is now attempted to be blown out of proportion and is stretched to such an extent to make it look like a serious criminal offence.

12.In this case, the petitioner in Crl.OP(MD)No.9083 of 2017 is not claiming any ownership over the private property in dispute. His case is that the property belongs to Maha Semam Trust run by his father and he was not aware of the fact that by virtue of the deed of exchange, his brother Dr. S.Gurushankar became owner of the property. Therefore, it is clear that the petitioner Mr.S.Ramesh had no intention of grabbing the property, whether it belongs to the Trust or to Dr. S.Gurushankar.

13. In the disputed property, which is situated in the front portion of the residence of Mr.S.Ramesh, there was growth of Seemai Karuvelam trees, bushes, garbage and medical waste. This was sought to be cleared by Mr.S.Ramesh with the help of A2 to A4, since it involved clearing of trees and bushes. After clearing the trees and bushes, the said Mr.S.Ramesh, has not claimed any right over the property and has only ensured that front portion of his residence is kept clean and more particularly Seemai Karuvelam trees was considered to be be dangerous, since, it had a character of draining the ground water level.

14.If this case is looked from this background, under normal circumstances, this could not have resulted in a criminal prosecution. But, however, a strong animosity that prevails between the petitioner and the 2nd respondent, who is his younger brother, has given this incident a criminal colour and the 1st respondent Police have proceeded to investigate and even file a final report in this case.

15.It is beyond cavil that this Court in exercise of its jurisdiction under Section 482 CrPC will not go into and give its opinion on disputed questions of facts. The same has been made very clear by the Hon’ble Supreme Court in the judgments cited by Learned Senior Counsel Mr.K.Subramaniam.

16.This Court is not going to get into the process of deciding the disputed facts. This Court is only going to take materials as it is and see if really any offence has been made out in the final report filed by the first respondent.

17.In order to constitute an offence of criminal trespass, the ingredients of Section 441 IPC will have to be satisfied. A reading of Section 441 IPC, it can be found that the intent to commit an offence or to intimidate, insult or annoy any person in possession of the property is a necessary ingredient of the offence of criminal trespass. The Trespasser is a person, entering the premises of another with knowledge that his entrance is excess of the permission that has been given to him. A mere entry into a property is not enough, except where such a entry is done to commit an offence injurious to some persons interested in the property, on which, trespass is committed, or for the purpose of causing annoyance to such a person. Therefore, such aggravated circumstances only make a trespass into a criminal trespass.

18.In this case, two factors will have to be taken into consideration to see, if the petitioners have really committed an offence of the trespass. The 1st factor is that the property, in which the offence is said to have taken place is a vacant property, which originally belonged to the Trust named Maha Semam Trust, which was run by the father of the petitioner and the 1st respondent and this property is right in front of the residence of the petitioner. Admittedly, the petitioner has entered into the property and cleared the Seemai Karuvelam trees, bushes, garbage and medical waste and the petitioner is not claiming any right over the property or has made any attempt to grab the property. Considering the relationship between the parties, it will be too difficult to portray the act of the petitioner as a trespass. The witnesses have only spoken about the incident and there is no material to show that the petitioner intended to commit a criminal trespass as provided under Section 441 of IPC.

19.Going to the next offence of mischief, mischief has been defined in Section 425 IPC to mean an act done with an intention to cause or knowing that is likely to cause wrongful loss or damages to the public or any person, causes destruction to any property, etc., and must involve the mental act with the destructive animus. The destruction with an object to a wrongful loss or damage is obligatory to be established. In this case, what was removed from the property was the Seemai Karuvelam trees, bushes, garbage and medical waste, which was lying in front of residence of the petitioner. Therefore by no stretch, the act of the petitioner will constitute an offence of mischief.

20.Going to the third offence of criminal intimidation under Section 506(ii) IPC. The only allegation that has been made against the petitioner is an oral threat and nothing more. Section 503 IPC defines the criminal intimidation. The intention must be to cause alarm to the victim and materials have to be brought on record to show that the intention was to cause alarm to the person. A mere threat is not sufficient to attract the charge of criminal intimidation. In other words, the threat should be a real one and not just a mere word.

21. In the judgment in G.Paramasivam and Another V. Dy. Commissioner of Police and Others, reported in 2016 (1) TNLR 489 (MAD),It is has been held as follows:

?9. Coming to the alleged offence under Section 506(ii) I.P.C., is concerned, as rightly submitted by the learned Senior Counsel, a mere threat per se would not attract the said provision. The allegation is that the petitioners went to the house of the fourth respondent and threatened orally by showing their hands. A mere outburst would not attract Section 506(ii)IPC.?

22.A careful reading of the facts of the case as projected in the final report and applying the requisites under Section 503 IPC and also the dictum in the above said judgment, it is clear that no offence of criminal intimidation has been made out in this case to attract the punishment under Section 506(ii) IPC

23.The learned Senior Counsel Mr. Ajmal Khan appearing for the petitioner in CrlOP(MD)No.9083 of 2017 and the learned Counsel Mr.T.Lajapathy Roy, appearing for the petitioner in CrlOP(MD)No.8686 of 2017 have rightly brought to the notice of this Court Sections 95 IPC and 81 illustration (b) of IPC.

24.Sections 81 and 95 IPC fall within chapter IV of IPC, which deals with the general exceptions. The general exceptions contained in Section 76 to 106 make an offence a non-offence. The general exception are a part of definition of every offence contained in IPC. These general exceptions will apply even at the stage of investigation and filing of the final report, where, if on the basis of the allegation made in the complaint or the final report, the case is falling in general exceptions, it can be said that the action cannot be termed as an offence. It should be made clear that if in order to make out a case under general exceptions, evidence will have to be let in, then Chapter IV cannot be brought into operation at the stage of final report.

25.With this background, let me see, if this Court can apply general exceptions in the facts of the present case as projected in the final report.

26.Section 95 IPC has its itself foundation on the maxim de minimis non curat lex (The Law takes no account of trifiles). This Section is intended to prevent the penalization of negligible wrongs or of an offence of trivial character. Whether the act, which amounts to an offence, is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention, with which an offending act is done and other related circumstances. Under this provision, those cases even though fall within the letter of the penal law are yet not within its spirit, and or all over the world considered by the public, as innocent. In other words, a harm that results out of an offence, if is so slight and trivial that no person of ordinary sense and temper would complain of such a harm.

27.The present case is one, which falls under this category. The ordinary act of removing the bushes and unwanted trees in a property situated right opposite to the residence, which according to the second respondent belongs to him, and over which the petitioner is not claiming any right or intention to grab, even if it is assumed to be an offence, the harm that has been caused to the 2nd respondent is slight and so trivial that no person of ordinary sense will complain of such harm, more particularly, due to the close relationship of the parties in this case. In the considered view of this court, the facts taken as it is from the final report, will fall within the general exceptions provided under Section 95 of IPC.

28.Similarly Section 81 IPC is another general exceptions, having its foundation on the maxim Quod necessitas non hebet leegem, which means, necessity knows no law, where the act, which would otherwise be a crime, may in some cases be excused, if the person accused can show that it was done only in order to avoid the consequences, which could otherwise be avoided, and which, if they had followed, would have inflicted upon him inevitable and irreparable evil, that no more was done, than was reasonably necessary for that purpose, and that the evil inflicted by it, was not disproportionate to the evil avoided. Here the choice is between the two evils and the accused chose the lesser one. Illustration (b) of this provision demonstrates such proposition of law enunciated herein above.

29.In the present case, what was removed was predominantly Seemai Karuvelam trees, which is considered to be dangerous and which is capable of depleting the ground water level. By virtue of an order of Division Bench of this Court, virtually a big movement was undertaken on war footing to remove the Seemai Karuvelam Trees.

30.It is at this point of time that the petitioner with the help of 3 other persons had removed the Seemai Karuvelam trees, in order to protect the ground water level near his property and particularly from the property, which belongs to the Trust, which according to the petitioner is run by his father.

31.The removal of the Seemai Karuvelam Trees from the property belonging to the 2nd respondent will cause lesser evil than the greater evil that the Seemai Karuvelam Trees is capable of with regard to depletion of ground water level. Therefore, the 2nd respondent by no stretch can complain of greater evil by the removal of Seemai Karuvelam trees, since it has only protected his property and also the property belonging to the petitioner. Therefore, in the considered view of this Court, this general exception under Section 81 will also apply to the facts of the present case.

32. Therefore, apart from holding that no offence under Section 447, 427 and 506 (ii) IPC has been made out on the facts of the case, even if it is assumed an offence is made out, the facts of the case as projected in the final report brings this case within the general exceptions under Section 95 and 81 of IPC.

32.Looking at the case from this angle also, the final report cannot be sustained. On the facts and circumstances of the cases, this Court is able to clearly see that the criminal proceedings is manifestly attended with mala fide and with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to the private and personal grudge. The facts of this case will clearly fall under clause 5 and 7 of paragraph 102 in State of Haryana and others Vs.Bhajan Lal and others reported in 1992 Supp (1) SCC (335).

33. Permitting the continuation of the criminal proceedings will clearly amount abuse of process of criminal proceedings, more particularly where it is being used as instrument of harassment by a vindictive litigant .To secure the ends of justice, this criminal proceedings will have to be quashed.

34.This Court is of the considered view in the given facts and circumstances of the case and for the reasons stated herein above, that its jurisdiction under Section 482 CrPC will have to be exercised to stare down the frivolous criminal proceedings. Accordingly, the proceedings in CC No.338 of 2016, pending on the file of the Judicial Magistrate No. VI, Madurai is hereby quashed. The CrlOP(MD)Nos. 9083 of 2017 and 8686 of 2017 are allowed. Consequently, connected miscellaneous petitions are closed.

To

1.Judicial Magistrate No.VI, Madurai,

2.The Inspector of Police, K.Pudur Police Station, Madurai.

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]]> https://bnblegal.com/landmark/s-ramesh-vs-state-through-the-inspector-of-police-ors/feed/ 0 Karim @ Abdul Karim Vs. State of Karnataka https://bnblegal.com/landmark/karim-abdul-karim-vs-state-of-karnataka/ https://bnblegal.com/landmark/karim-abdul-karim-vs-state-of-karnataka/#respond Fri, 10 Apr 2020 08:55:07 +0000 https://bnblegal.com/?post_type=landmark&p=252716 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF JANUARY, 2018 PRESENT THE HON’BLE MR.JUSTICE RAVI MALIMATH AND THE HON’BLE DR.JUSTICE H. B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.673 OF 2012 BETWEEN: 1. KARIM @ ABDUL KARIM S/O MOHAMMED, AGED ABOUT 35 YEARS, R/AT NO.23, J.K. PURA, ADUGODI POST, BANGALORE. 2. […]

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]]> IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31st DAY OF JANUARY, 2018
PRESENT
THE HON’BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON’BLE DR.JUSTICE H. B. PRABHAKARA SASTRY
CRIMINAL APPEAL NO.673 OF 2012

BETWEEN:
1. KARIM @ ABDUL KARIM
S/O MOHAMMED,
AGED ABOUT 35 YEARS,
R/AT NO.23, J.K. PURA,
ADUGODI POST,
BANGALORE.

2. RAHIM @ ABDUL RAHIM
S/O MOHAMMED,
AGED ABOUT 38 YEARS,
R/AT NO.23, J.K. PURA,
ADUGODI POST,
BANGALORE.

3. RAFEEQ @ ABDUL RAFEEQ,
S/O. ABDUL REHMAN,
AGED ABOUT 27 YEARS,
R/AT NO.48, J.K.PURA,
MASJID ROAD,
BANGALORE.

4. RIZWAN @ LONG RIZWAN,
S/O. ABDUL REHMAN,
AGED ABOUT 27 YEARS,
R/AT NO.48, J.K.PURA,
MASJID ROAD,
BANGALORE.

5. GAS SADIQ @ SADIQ @
SYED SADIQ,
S/O. SYED ANWAR,
AGED ABOUT 30 YEARS,
R/AT NO.98, J.K.PURA,
MASJID ROAD, ADUGODI POST,
BANGALORE.

6. TIPPU @ TIPPU MUJAEED KHAN
S/O. SHOUKATH ALI KHAN,
AGED ABOUT 23 YEARS,
R/AT NO.234, J.K.PURA,
MASJID ROAD,
BANGALORE.

7. APPU
S/O IMAM SAB,
AGED ABOUT 22 YEARS,
R/AT NO.228, J.K.PURA,
MASJID ROAD,
BANGALORE.

8. CHAN @ CHOWDRI
S/O SIMICHAND,
AGED ABOUT 24 YEARS,
R/AT NO.48, 1ST CROSS,
VINAYAK NAGAR,
BANGALORE.

(NOW ALL ARE IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE) … APPELLANTS

(BY SRI. HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY WILSON GARDEN POLICE STATION,
BANGALORE CITY.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR) …RESPONDENT
(BY SRI. CHETHAN DESAI, HCGP)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF THE Cr.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.03.2012 AND SENTENCES DATED 2.4.2012 PASSED BY THE FAST TRACK SESSIONS COURT XVII, BANGALORE CITY IN S.C.NO.719 OF 2006, S.C.NO.511 OF 2006, S.C.NO.902 OF 2007 AND S.C.NO.961 OF 2006 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 147, 148, 341, 427, 307, 302 READ WITH SECTION 149 OF IPC AND ETC.

THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.01.2018 AND PRONOUNCED THIS DAY Dr. H B PRABHAKARA SASTRY, J., DELIVERED THE FOLLOWING:-

JUDGMENT

The present appellants were accused No.1, 2, 6, 7, 8, 9, 10 and 11 before Fast Track Sessions Court -XVII, Bengaluru City (hence forth for brevity referred to as the ‘Sessions Court’ here afterwards). The respondent police had filed main charge sheet in S.C. No.511/2006 against accused No.5 to 10. Thereafter split up charge sheet was filed against accused Nos.1 and 2 in S.C. No.719/2006 and against accused No.3 in S.C. No.902/2007 and against accused No.11 in S.C. No.961/2006. All the charge sheets against the accused were filed for the offence punishable under Sections 147, 148, 341, 427, 307 and 302 read with Section 149 of the Indian Penal Code. Since the accused No.4 was said to be absconding no split up charge sheet was filed against him. As such, the Sessions Court proceeded as against accused Nos.1 to 3 and 5 to 11 and after recording the evidence led before it by its common judgment dated 30.03.2012 found accused No.1 and 2 in S.C. No.719/2006, accused No.5 to 10 in S.C. No.511/2006 and accused No.11 in S.C. No.961/2006 guilty of the offences punishable under Sections 147, 148, 341, 427, 307 and 302 read with Section 149 of the Indian Penal Code. However, accused No.3 in S.C. No.902/2007 was acquitted for the alleged offences. The Sessions Court further sentenced accused No.1, 2 and 6 to 11 to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo further simple imprisonment for a period of two months for the offence punishable under Section 147 read with Section 149 of the Indian Penal Code. It sentenced accused No.1, 2 and 6 to 11 to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,500/- each and in default of fine to undergo simple imprisonment for a period of three months for the offence punishable under Section 148 read with Section 149 of the Indian Penal Code. It also sentenced accused No.1, 2, 6 to 11 to pay a fine of Rs.500/- each and in default of fine to undergo simple imprisonment for a period of one month for offence punishable under Section 341 read with Section 149 of the Indian Penal Code. It further sentenced accused No.1, 2, 6 to 11 to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- each and in default of fine to undergo simple imprisonment for a period of four months for the offence punishable under Section 427 read with Section 149 of the Indian Penal Code. Accused No.1, 2, 6 to 11 also sentenced to undergo simple imprisonment for a period of 7 years and also to pay a fine of Rs.5,000/- each and in default of fine to undergo simple imprisonment for a period of six months for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. Lastly, the Sessions Court also sentenced accused No.1, 2, 6 to 11 to undergo life imprisonment and also to pay a fine of Rs.10,000/- each and in default of fine to undergo simple imprisonment for a period of 9 months for the offence punishable under Section 302 read with Section 149 of the Indian Penal code. It is against the said judgment and conviction and order on sentence the appellants have preferred this appeal.

2. In their memorandum of appeal the appellants have taken contention that the Sessions Court has committed serious error in recording conviction against the appellants in the absence of reliable and credible evidence on record. It ignored the fact that there were many persons who were inimical to deceased K.G.P.Z. Hussain because of his criminal bad conduct. The Sessions Court failed to scrutinize the evidence of eye witnesses with utmost care to rule out the possibility of false implication of appellants. It also ignored the fact that at the first instance while narrating the history of the alleged incident before the doctor, the family members of the deceased and more particularly, the complainant has stated and got recorded in MLC register that the deceased was assaulted by only six persons with iron rod and knife. Further the name or identity of the assailants were also not disclosed. This aspect the Sessions Court did not appreciate in its proper perspective. It is also contended in the memorandum of appeal that the EX.P.1 is not the FIR and it is hit by Section 162 of the Criminal Procedure Code because it has come into existence during investigation. Further contending that the Sessions Court failed to appreciate the evidence in its proper perspective and has arrived at a erroneous conclusion, the appellants have prayed for setting aside of the judgment of conviction and order on sentence challenged in this appeal, by allowing the present appeal.

3. The respondent is being represented by High Court Government Pleader. Lower court records were called for and the same are placed before this Court.

4. Heard the arguments from both side. Learned counsel for the appellant in his argument vehemently submitted that the alleged motive put forth by the prosecution in the case is not a strong motive to hold that the same would lead for the commission of alleged offence by the accused. The complainant who is the daughter of the deceased and claiming herself to be the eye witness to the alleged incident has not stated the names or identity of the alleged assailants before the doctor who examined the injured and that even in her alleged complaint before the police also she has not explained the overt act of each of the accused in detail. He also submitted that in the circumstances of the case the lodging of the alleged complaint is to be considered as a delayed lodging of FIR.

5. Learned counsel reiterated the contention taken up by the appellants in their memorandum of appeal to the effect that EX.P1 FIR is not the FIR in its strict sense for the reason that the same has come into existence during the course of investigation. While giving more emphasis on the appreciation of evidence of PW.1, PW.2 and PW.3, the learned counsel also submitted that there is no consistence in the evidence of these three alleged eye witnesses since the description of the event as narrated by them does not go in harmony and their evidence suffers from lot of inconsistencies. He also submitted that no separate charge was framed for the offence under Section 142 of the Indian Penal Code and that the alleged act of accused No.1, 2, 3 and 4 being an act of abetment of the alleged offence, the same would constitute a separate offence punishable under Section 114 of the Indian Penal Code. As such, a separate charge ought to have been framed for the offence punishable under Section 114 of the Indian Penal Code and that they should not have been held guilty as the member of alleged unlawful assembly under Section 149 of the Indian Penal Code.

6. Learned counsel further submitted that the Court below did not appreciate the defence evidence led before it to prove that accused No.1, 2 and 9 were also not present at the scene of offence at the time of alleged offence. As such, their evidence of proving the stand of alibi taken by them has not been considered properly by the Sessions Court.

7. In support of his argument the learned counsel for the appellants relied upon three judgments of the Hon’ble Supreme Court reported in 1999 AIR SCW 4694, AIR 1974 SC 45 and in 2001 (2) Supreme (Crimes) 618 which will be considered at the relevant stage hereafter words.

8. Learned High Court Government Pleader in his argument submitted that the evidence of PW.1, PW.2 and PW.3 to the effect that there was a dispute between the committee members of the masjid and the deceased with respect to a passage existing in between the masjid and the house of the deceased and previous life threats given by the committee members of the masjid who includes some of the accused herein and the fact of the deceased lodging several complaints against them before the jurisdictional police station for the life threat given by the committee members and the accused to the deceased clearly establishes the motive behind the act of the accused in the case. He also submitted that within 1½ hours of the incident the FIR came to be lodged giving priority to the medical treatment to be secured to the injured and without wasting any time the complainant has lodged the complaint. As such, no delay can be noticed in the lodging of FIR.

9. Regarding the identity of the accused is concerned, learned High Court Government Pleader submitted that the statement and evidence of PW.1, PW.2 and PW.3 to the effect that all the accused persons were known to them even prior to the incident is not in dispute and that naming of the accused with the overt act committed by them clearly establishes their identity. He also submitted that eye witnesses have alleged overt act against the accused and also explained the manner of occurrence of incident which inspires confidence in the Court to accept their evidence. He further submitted that all the accused since had predetermined to take away the life of the deceased Hussain and in the execution of their common object they have chased, attacked and assaulted him with deadly weapons, the unlawful assembly and its common object and also committing the alleged offensive act in furtherance of the common object of the said unlawful assembly has stood proved beyond reasonable doubt. In support of his argument he relied upon the judgments of the Hon’ble Supreme Court reported in 2015 (4) SCC 749 and 2014 (5) SCC 753.

10. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and the order on sentence.

11. In the light of the above the points that arise for our consideration are:

(1) Whether the prosecution has proved beyond reasonable doubt that on 25.02.2006 at about 9.10 p.m. in front of Hulichikkamma Brahmins Association Building on public road, 8th Cross, Wilson Garden, Bengaluru, the present appellants were the members of an unlawful assembly having common object of murdering Sri KGPF Hussain, the father of CW.1 and thereby has committed an offence punishable under Section 147 of the Indian Penal Code ?

(2) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, the present appellants were armed with deadly weapons like, iron longs and knife and thereby committed an offence punishable under Section 148 of the Indian Penal Code ?

(3) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, the present appellants as accused, in furtherance of their common object of their unlawful assembly wrongfully restrained deceased KGPZ Hussain while he was traveling in auto rickshaw bearing No. KA 03 6600 and thereby have committed an offence punishable under Section 341 read with Section 149 of the Indian Penal Code ?

(4) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, all the appellants being the members of an unlawful assembly in furtherance of their common object of unlawful assembly committed mischief by committing wrongful loss or damage to the auto rickshaw bearing No.KA 03 6600 and thereby have committed an offence punishable under Section 427 read with Section 149 of the Indian Penal Code ?

(5) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, the appellants being the members of an unlawful assembly and in prosecution of their common object of such assembly assaulted CW.1 Mrs.K Tameen Tabaras Ansani with deadly weapons with an intention and under such circumstances that by their act if the death of CW.1 had caused, they would have been guilty of murder and thereby have committed an offence punishable under Section 307 read with Section 149 of the Indian Penal Code ?

(6) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, all the appellants in prosecution of common object of their unlawful assembly committed murder of K.G.P.Z. Hussain by assaulting him with deadly weapons and thereby have committed an offence punishable under Section 302 read with Section 149 of the Indian Penal Code?

(7) Whether the judgment and conviction of order on sentence impugned in this appeal deserves an interference at the hands of this Court?

12. The summary of the case of the prosecution in the court below was that on 25.02.2006 at about 9.10 p.m. one Sri K.G.P.Z. Hussain the deceased was returning home in his auto rickshaw bearing registration No.KA 03 6600 along with his wife and children. At that time when the deceased was driving his auto rickshaw in front of Hulichikkamma Society at 8th Cross, Wilson Garden, accused Nos.1 to 11 forming an unlawful assembly and duly armed with deadly weapons like choppers. Long, stone, knife, button knife, etc., came there in an auto rickshaw bearing registration No.KA 01 B 831 and other vehicles and wrongfully restrained the auto rickshaw being driven by the deceased Sri Hussain and caused damage to the said auto rickshaw and threw chilly powder into his eyes and assaulted him with the deadly weapons on his head, chest, abdomen, back and on his hands causing severe bleeding injuries to him and committed his murder intentionally. The accused also assaulted CW.1 Mrs. K Tameen Tabaras Ansani, the daughter of the deceased Hussain, who rushed to the rescue of her father and attempted to commit her murder. The deceased and the accused had dispute in respect of building constructed nearby J K Pura Mosque. Thus, the accused 1 to 11 who were belonging to the committee of said Noorani Mosque had decided to commit murder of said K.G.P.Z. Hussain. Thus the accused have committed the offence punishable under Sections, 143, 144, 145, 146, 147, 148, 341, 427, 307, 302 read with Section 149 of the Indian Penal Code. Excluding accused No.4 against whom the case was split up, as against the remaining accused, the Sessions Court framed the charges for the offence punishable under Sections 147, 148, 341, 427, 307 and 302 read with Section 149 of the Indian Penal code.

13. In order to prove its case the prosecution examined 20 witnesses from PW.1 to PW.20 and got marked documents from Exhibits P.1 to P.28 and material objects at MO.1 to MO.45 and closed its side.

14. From the accused side accused No.1 to 3 and 9 who had set up a plea of alibi examined 17 witnesses from DW.1 to DW.17 and got marked exhibits D1 to D7. No defence evidence was lead on behalf of accused No.5 to 8, 10 and 11.

15. Among the 20 witnesses examined by the prosecution PW.1, PW.2 and PW.3 are projected as eye witnesses to the incident. PW.1 is the complainant in the case who is also the daughter of deceased Hussain. The summary of the evidence of PW.1 is that she knows accused No.1 to 3 and 5 to 11. Her house is adjacent to masjid. The accused has raised objection while the deceased was putting up the construction of the house.

In that regard her father had lodged a case against the accused. After filing of the case the accused started harassing her father and was pestering him to withdraw the said case. They were also threatening of putting the deceased into trouble if he failed to withdraw his case. Accused No.1 Karim, accused No.2 Rahim, accused No.3 Samiulla, accused No.5 Manju, accused No.6 Raffiq the members of the committee of the mosque and that they were pestering to withdraw the complaint and threatening the deceased. They had blocked the passage adjoining the house of the deceased. In addition to this every day accused No.6 Raffiq and accused No.7 Rijwan were also going to the house of the deceased and troubling him to vacate the house and to pay them money. That being the case on the date 25.02.2006 the deceased Hussain along with his wife, complainant and three brothers of the complainant had been to a darga and were returning home in the night. While they were on K H Road, BTS double road all the accused following them in auto rickshaw were shouting to catch them. At that time one auto came and dashed to the auto rickshaw in which the deceased and his family were moving. While the deceased Hussain got down and was trying to set the auto rickshaw in the correct position which had inclined on a side, the accused armed with hockey bat, long, broken the glasses of the auto rickshaw, threw chilly powder on her father. At that time accused No.6 Raffiq and accused No.8 Gas Sadique assaulted Hussain on his right hand with a long. They were also telling that despite their advise the deceased was not yielding to their words. Accused No.1 Karim, accused No.3 Samiulla were instigating other accused to assault the deceased. Accused No.5 Manju, accused No.6 Raffiq and accused No.7 Rijwan assaulted the deceased on different parts of his body. When PW.1 tried to rescue her father the accused stating that they would not spare Hussain, assaulted PW.1 also. The injured Hussain fell down. PW.1 and her mother rescued him. By that time police rushed to the spot in Hoysala motor vehicle and shifted the injured to Agadi Nursing Home. Since no doctor was available at that time, the injured was shifted to Sanjay Gandhi Hospital. However, while on way to the hospital injured Hussain succumbed to the injuries. The doctor at Sanjay Gandhi hospital declared Hussain as ‘brought dead’.

16. It is also the evidence of PW.1 that thereafter she went to the complaint police station and lodged a complaint, which she has identified at EX.P1 and her signatures therein are at EX.P1(a) and P1(b). The police visited the spot of the offence after the complaint was registered and drew a scene of offence panchanama which PW.1 has identified as EX.P2 and her signature therein at EX.P2(a). She also stated that the police seized broken glasses of auto rickshaw, cap and slippers of the deceased, stick and stones from the spot under the panchanama. The witness has identified chappals at MO.1 and MO.2 and three other chappals at MOs.3 to 5. She has also identified the stones and broken glass pieces at MO.6 and MO.7 respectively. She identified a piece of cloth as the scarf used by her father at MO.8 and the cap of the deceased at MO.9. She also identified blood stained mud said to have been collected from the spot at MO.10. She identified cloth seizure panchanama of the injured at EX.P3. The witness has further stated that the incident took place at 9.10 p.m. There were five to six persons holding long (a type of weapon resembling sword). Accused Karim, Rahim, Samiulla and Ansar were standing. The said witness was subjected to a detailed and searching cross examination from the accused side wherein she adhered to her original version.

17. PW.2 Mrs.Haseena Begum, the wife of the deceased has also spoken on the lines as stated by her daughter PW.1 in her examination in chief. She has also stated about the dispute said to have been existing between the deceased and committee members of the masjid which masjid was situated by the side of her house. About the incident she has stated that on the date of incident while they were returning from darga her husband was driving the auto, herself and her children were sitting in the back seat. At that time accused Sadiq, Rafiq, Mujju along with Samiulla, Rahim and Karim intervened their way and instigated other accused to finish her husband at which accused Rafiq assaulted her husband on legs, accused Mujju dragged her husband Karim assaulted on the head of her husband, Rahim assaulted on the neck of her husband, finally all the accused cut the throat of her husband. Thereafter the police arrived to the spot. All the accused ran away by seeing the arrival of the police. She identified four longs at MOs.13 to 16 stating that they were used by accused Karim, Rahim and Samiulla who cut the throat of her husband. She was also subjected to a detailed and searching cross examination from the accused side wherein she adhered to her original version.

18. PW.3 Altamas the younger brother of PW.1 and the son of the deceased also lead his evidence on the lines of the evidence of PW.1 and PW.2. He has also spoken about the existence of the dispute between his father and the accused who were the members of the committee of the masjid, with respect to an open passage and accused Samiulla, Karim and Rahim being the committee members of the masjid threatening his father and forcing him to withdraw the complaint filed by him. About the incident the witness has stated that on 25.02.2006 while he along with his father, mother and sister returning from darga to their house at 8th Cross in Wilson Garden all the accused came in an auto rickshaw and dashed to the auto in which these people were traveling. Accused Appu threw chilly power on the face of his father and other accused attacked his father with longs, knife and baku (a type of weapon). Accused Samiulla, Rahim and Karim instigated the other accused to finish his father. This witness also stated that his sister i.e., PW.1 who rushed to the rescue of his father also sustained injuries in the incident. The police took the injured in Hoysala jeep to Agadi Nursing Home from thereto Sanjay Gandhi Hospital, where his father was declared as ‘dead’. He was also subjected to a detailed and searching cross examination from the accused side wherein he adhered to his original version.

19. Thus, regarding the incident it is three witnesses i.e. P.W.1, P.W.2 and P.W.3 who have given a detailed account claiming themselves to be the eye witnesses. Even though all these three witnesses were subjected to a detailed and searching cross examination from the accused side, but their evidence to the effect that on the alleged date of incident along with the deceased they were also traveling in the very same authrickshaw and they were eye witnesses to the alleged incident could not be shaken. In her cross-examination, P.W.1 has given some more details regarding the incident as answers to the questions put to her. She has stated that there were seven inmates in the autorickshaw including their father and that they had been to Darga near Vidhana Soudha at Bengaluru. According to her, by the time they reached the said Darga it was about 7.30 p.m and after completing Namaz when they left the Darga, it was 8.30 p.m. She has also stated that the place of incident was not far away from the police station. However, that time on that day there was no public movement on the road except about 5 -6 persons. The denial suggestion made to her was not admitted as true by her. She has also stated that accused Nos.5 and 6 assaulted her and injured her.

20. P.W.2 has also given a detailed account of overt acts said to have been committed by each of the accused against her husband. She has also stated that while accused were chasing them in their autorickshaw near the spot, she heard their yelling as ‘pakado pakado’ at that time, the autorikshaw in which the accused were traveling dashed to their auto in which these people were going, due to which, the auto in which she was traveling leaned on one side which his father was setting at right, at that time accused Nos.1 and 2 approached him. It was accused Nos.6, 8 and 5 who assaulted his father at first and accused Nos.1 and accused No.2 assaulted him at the end. Apart from stating that since there was electricity light in that area, she could identify the accused. She has also given a detailed count of overt acts of the participants/accused in the crime. She has stated that accused Nos.6 and 8 assaulted her father on his right hand, accused No.3 assaulted on the shoulder. Accused Nos.1 and 2 also assaulted her father. In addition, accused No.1 was also telling others to assault her father and not to leave him. Accused Nos.5, 6 and 7 assaulted on the head of the deceased. Accused Nos.2, 3 and 4 were standing there in support of the other accused. Accused No.10 threw chilly powder on the face of his husband. Thus, except accused Nos.9 and 11, with respect to all other accused she has given a detailed account of overt acts said to have been committed by them. Though she has stated she was an illiterate lady and not gone to school, except Urdu language she does not know any other language, she has given a detailed account as to the incident. By using translator to translate her evidence from Urdu language to Kannada language, her evidence was recorded by the Sessions Court. She has categorically stated that accused Nos.1, 2 and 3 instigated the other accused by telling them to assault her husband completely and not to leave him. Accused Nos.5, 6 and 8 were telling to cut the hands and legs of her husband. Apart from that, accused No.5 caught hold of the deceased, dragged him and accused No.6 assaulted the deceased on his leg, accused No.1 hit on the head of the deceased, while accused No.2 hit on the neck of the deceased. Accused No.1 hit on the back of the head of the deceased and accused No.5 again hit on the head of the deceased.

21. Thus, both P.W.1 and P.W.2 have given a detailed account of the overt acts of the accused also stated that while assaulting the deceased on his head and leg, accused assaulted on the respective parts of the body of the deceased by using long and chopper by them. Even P.W.2 has also stated that accused had followed them in autorickshaw and they made to stop the autorickshaw in which P.W.2 and her family members were traveling, brought them out and assaulted. At one breath in the cross-examination, P.W.2 has stated that it took half an hour for them to come out of the autorickshaw which had fallen, the accused making use of the statement have suggested that since they were in the said autorickshaw nearly for about half an hour, they could not see the incident clearly, P.W.2 has not admitted the said suggestion as true. However, by making such suggestion, the accused have admitted that P.W.2 was present in the scene of offence and was an eye witness. The said evidence of P.W.2 also could not be shaken in her cross- examination by the accused side.

22. The evidence of P.W.3 has also come in consonance with the evidence of P.W.1 and P.W.2. He has also withstood the cross-examination of the accused successfully. He has also stated that all the accused assaulted his father in the incident. Giving details of the overt acts, he has stated that accused Nos.1, 2 and 3 were telling other accused not to leave the deceased and assault on the head, chest, neck hand and legs of the deceased. Accused No.10 threw chilly powder on the face of the deceased. Accused No.3, 6 and 8 stood around the deceased and covered him. According to him, all the accused were present at the scene of offence at the time of accident. He has also given a detailed account as to the holding of the weapon by the accused. Thus, P.W.1, P.W.2 and P.W.3 have not only mentioned about the presence of the accused in the place of offence, but also have given a detailed account of the accused holding deadly weapons by them and the overt acts committed by them. Therefore, there is no reason to disbelieve that they were not present at the scene of offence at the time of incident and that they were not eye witnesses. Therefore, even though they are family members of the deceased, their evidence has come out in a very natural way and cannot be disbelieved merely by calling them interested witnesses. Even though, P.W.1 has not given details of the overt acts with respect to accused Nos.9 and 11, but she has categorically stated that all the accused followed them in an autorickshaw. Thus, though she has not specifically named accused Nos.9 and 11 in her evidence, but she has included them stating that all the accused followed them. It also cannot be ignored that in her complaint at the first instance itself she has named that even accused No.9- Tippu, was also one among the accused who also participated in the commission of crime. P.W.3 has categorically stated that all the accused have assaulted his father.

23. Even when the accused are in large number of more than 10 persons, it cannot be expected that an eye witness is required to explain the individual overt act of each of the accused in detail. More particularly, under the present circumstances of the case, wherein being the wife and children of the person under attack (deceased) it was more required and necessitated for these three eye witnesses to rescue their father (husband of P.W.2), rather stand watching as to which accused assaults in which order and with which weapon in a detailed manner. However, what a normal person can observe and memorise in a similar circumstance, the same has been done by P.Ws.1, 2 and 3 also. Therefore, their evidence is reliable and appears to be trustworthy. As such, it is established that the present appellants joined by others have committed the acts as alleged.

24. It is at this juncture the first leg of the argument of the learned counsel for the appellants is to be considered. It is his argument that unless a specific charge is framed for the offence under section 143 of IPC for the offence punishable under Section 142 of the IPC, the accused cannot be held as members of an unlawful assembly. No doubt, it is true that no specific charge under Section 143 of the IPC has been framed in the instant case, but it cannot be forgotten that it is the case of the complainant that all the accused have jointly committed the alleged offences and the material witnesses i.e. P.Ws. 1, 2 and 3 have uniformly stated that all the accused have followed and chased them in autorickshaw and restrained these people from proceeding further and thereafter as a group they have attacked and assaulted mainly the deceased Hussain and also P.W.1, who rushed to the rescue of the deceased. Further, they have also stated that the accused were armed with deadly weapons like long, chopper and button knife which they used in the commission of the crime. The said evidence cannot be ignored. Thus, considering the facts and circumstances of the case and the overt acts attributed against the accused and also expression of their determination while committing the offence that they would finish of the deceased would all go to clearly establish that they had formed an unlawful assembly with the object of taking away the life of the deceased and armed with deadly weapons, they had attacked the deceased. Therefore, merely non- framing of a specific charge under Section 143 of the IPC in the instant case would not take away the case of the prosecution or make the other offences committed by the accused as members of an unlawful assembly is unbelievable or to be discarded.

25. It was also the argument of the learned counsel for the appellants that accused Nos.1, 2, 3 and 4 are said to be standing near the place of the offence and were instigating others to assault the deceased. As such, their act attracts Section 114 of IPC and as such, they ought to have been charged and tried only for the offence punishable under Section 114 of the IPC stating that their act amounts to abatement.

26. Learned counsel relied upon three judgments of the Hon’ble Supreme Court in his support in Jainul Haque v.State of Bihar, AIR 1974 SC 45, the Hon’ble Supreme Court while dealing with Section 323 of the IPC in a criminal appeal was pleased to observe that conviction for abetment cannot be recorded without clear, cogent and reliable evidence in this respect.

In Wakil Yadav and another v. State of Bihar, 1999 AIR SCW 4694, the Hon’ble Supreme Court in a case of murder by a group of persons attracting the offence under Section 302, 149 of the IPC, observing that appellants were convicted for offence punishable under section 302 IPC read with 109 IPC, it observed that no charge was framed against the appellant with the aid of Section 109 of the IPC. Section 109 of the IPC is a distinct offence. It observed that the appellants before it having faced trial for being a member of unlawful assembly which achieved the common object of killing the deceased, could in no event be substitutedly convicted for the offence under Section 302 of IPC with the aid of Section 109 of the IPC. It further held that there was obviously not only a legal flaw but also a great prejudice to the appellant in projecting his defence.

27. In the case on hand, the entire case of the prosecution is that all the accused have actively participated in the commission of crime. P.W.1 in her complaint itself has given the names of nine accused describing their role in the commission of the offence. Further, P.W.1, P.W.2 and P.W.3 have clearly and categorically stated that the accused followed them and thereafter dragging the deceased from autorickshaw, assaulted them with deadly weapons. Thus, there is active involvement of the every accused in committing the offence apart from assaulting. If they instigated other accused by asking them to finish of the deceased, it cannot be called that they are only abettors at the first instance in the commission of the crime. In the instant case, accused Nos.1, 2, 3 and 4 apart from abetting them also committed the crime by themselves assaulting the deceased. As such, the question of they becoming a mere abettor would not arise, but they are actual participants in the commission and as such, the arguments of the learned counsel for the appellants is not acceptable.

28. Learned counsel for the appellants in his argument submitted that there is no consistency between the evidence of P.Ws.1, 2 and 3 and as such, their evidence is not reliable. He also relied upon the judgment of the Hon’ble Supreme Court in Chandra Shekhar Bind & Ors v. State of Bihar, 2001(2) Supreme (Cr.)

618. In the said judgment at paragraph – 9, the Hon’ble Apex Court was referring to its previous judgment in the case of Masalti v. State of U.P., AIR 1965 SC 202, held that where a criminal court has to deal with evidence pertaining to the commission of offence involving large number of offenders it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. It was also held that in a sense, the test may be described a mechanical, but it cannot held that even though it is the quality of the evidence that matters and not the number of witnesses, still it is useful to adopt such a mechanical test.

29. In the instant case, about the occurrence of the incident and the manner how the deceased was handled, assaulted by the accused, Pws.1, 2 and 3, as already observed above, have uniformly stated in their evidence that the accused following them in an autorickshaw have restrained them and targeting the deceased, the father of the complainant have brutally assaulted him with deadly weapons. Regarding the description of the weapons used by the accused and the major assaults inflicted upon the deceased by the particular accused, there is uniformity and consistency in the evidence of P.Ws.1, 2 and 3, as such, not only in number of witnesses, but also in their quality of evidence P.Ws.1, 2 and 3 have to be taken as withstood the test and their evidence is trustworthy and reliable. As such, the judgment of the Hon’ble Supreme Court in Chandra Shekhar Bind’s case (supra) also would be of no help to the appellants.

30. According to P.Ws.1, 2 and 3 by the time they shifted the injured to St. John’s Hospital, Bengaluru for treatment, he was examined by the doctor and declared as brought dead.

P.W.19, the investigating officer has also given his evidence to the same effect. The investigating officer conducted the inquest panchanama of the deceased on the next day i.e on 27.2.2006 in the mortuary at St.Johns Hospital in the presence of the panchas as per Ex.P.16. The said panchanama shows that the panchas after seeing the dead body and the injuries found on the dead body have opined that the death was homicidal and a murder. According to the investigating officer, he got the autopsy of the dead body done by Dr. P.K. Devadas (P.W.8). The said witness in his evidence has stated that he conducted post-mortem examination of the deceased and has given the details of the external injuries found on the dead body which is said to have been recorded by him as below;

” 1. Chop injury, glancing, above dowawrds present over fore head meag. 5 cms x 5 cms x skin thickness.

2. Cut injury, glancing, present over upper part of frontal region meag. 2.5 cms x 2.5 cms x skin thickness.

3. Chop injury meag. 9 cms x 1 cms x bone deep situated left side top of head, anterior and situated above outer end of eye brow underneath bone is cut.

4. Chop injury meag. 6 cms x 2 cms x bone deep situated right side top of head mid point is 11 cms above right ear underneath the bone is cut.

5. Chop injury meag. 8cms x 2 cms bone deep situated 11 cms above left ear, back underneath bone is cut.

6. Chop injury, glancing meag. 8 cms x 2 cms x bone deep, 7 cms above and behind left ear.

7. Chop injury meag. 5 cms x 7 cms x bone deep situated above external occipital, perotuberance underneath bone is cut obliquely.

8. Penetrating injury 8.5 cms x 3 cms situated just above the left stemoclavicular joint, transverse trailing outwards. On dissection left sterol clido mastoid muscle is cut and the depth of the injury is 4 cms. Edges of the injury show abrasion.

9. Abrasion meag. 11 cms x 1.5 cms almost transverse situated below neck.

10. Abrasion measuring 8 cms x 1.5 cms almost vertical situated left supra scapular region. Incise injury 7 cms x 1 cm muscle deep vertical situated right supra scapular region.

11. Penetrating injury meag. 4 cms x 1 cm muscle deep 3 cms between muscle and skin tailing outwards meag. 6 cms, edges clean cut situated right intra scapular.

12. Penetrating injury meag. 2.5 cms x 1 cm muscle deep situated 4 cms below left intra scapular region. Edges clean cut.

13. Stab Injury measuring 4 cms x 1 cm x chest cavity deep oblige upper outer sharp, lower inner edge is blunt, edges are clean cut situated just below inferior cavity of left scapular.

14. Abrasion meag. 2 cms x 2 cms situated left side of chest.

15. Incise injury, transverse situated lower back of abdomen meag. 2 cms x 1 cm muscle deep.

16. Superficial incise injury meag. 6 cms x 05 cms 0.5 cms situated back of left forearm.

17. Chop injury meag. 2 cms x 2 cms x bone deep situated back of left ring finger, glancing.

18. Chop injury meag. 3.5 cms x 0.5 cms bone deep situated back of left middle finger.

19. Abrasion meag. 4 cms x 0.5 cms situated over outer side of left wrist.

20. Abrasion meag. 2 cms x 2 cms situated over front of left knee cap.

21. Abrasion meag. 6 cms x 4 cms situated on upper part of left foot.

22. Penetrating injury 7 cms x 1 cm situated right side of chest tranverse on left side of nipple.

23. Abrasion 3 cms x 0.5 cms, 7 x 11 cms x 0.5 cms present over outer side of left arm.

24. Abrasion 4 cms x 0.5cms, 4cms x 0.5 cms present over back of right forearm.

25. Chop injury, glancing meag. 10 cms x 6 cms tenon deep present over wrist. ”

On dissection the doctor has noticed scalp -chop injury described skull showing cut fractures corresponding to external chop injuries. Membranes lacerated at the fracture side. Chest left 8th rib and 8th intercostal space is cut corresponding to external injury Left cavity contains blood and blood clot 1.5 ltrs. The doctor has opined that the death was due to shock and haemmorage as a result of multiple chop and stab injuries sustained. The doctor has also stated that he was shown by the complainant/ police six weapons which included two chops, two swords and two knives. After examining those weapons, he came to an opinion that it was possible to sustain such chop injuries found on the dead body of the deceased by the type of choppers and swords. Penetrating injury found on the deceased could be able to cause by tip of choppers. The said injury found on the chest of the cavity of the deceased was possible to be caused by the type of weapon knife shown to him. The said doctor identified and got marked post-mortem report at Ex.P.7 issued by him and also identified the weapons at M.O.11 and M.Os.13 to 16 shown to him. His evidence regarding the injuries found on the deceased is caused due to the relating injuries by the weapon shown to him, could not be shaken in his cross-examination. As such, the evidence of P.W.1, 2 and 3 who have stated that the accused assaulted the deceased with deadly weapons and caused his death, coupled with medical evidence establishes that the death of the deceased was not only homicidal, but it was culpable homicide.

31. Thus, the act of the accused in assaulting the deceased Husain and killing him being in prosecution of their common object to kill him and since they had motive to cause his death, the homicidal death of the deceased Hussein amounts to culpable homicide amounting to murder.

32. The evidence of P.W.4 is that the place of incident was in Wilson garden and that the panchanama about the scene of offence is drawn in his presence as per Ex.P.2 corroborates the evidence of P.W.19, the investigating officer. The said panchanama shows that the place of offence tallies with the place of offence as collected by P.Ws.1, 2 and 3, who also have stated about the presence of electricity light in that place at the time of incident. As such, the place of incident is also established.

33. The evidence of P.W.10 that he drew the sketch of the scene of offence as per Ex.P.10 corresponds with the place of offence described in Ex.P.2.

34. Regarding the weapon used in the commission of the crime is concerned, according to P.Ws.1, 2 and 3, the eye witnesses, those weapons were four longs and knives. P.W.1 has identified them at M.O.13 to M.O.16 in her evidence stating that they were with the accused. She has also identified the knife at M.O.11. Similarly, P.W.2 another eye witness has also identified the weapons at M.O.13 to M.O.16 and specifically stated that which of the weapon among M.O.13 to M.O.15 were with which accused. She has stated about the weapon called ‘Bichava’ as one of the weapon used by the accused and P.W.3. The son of the deceased, who is also an eye witness to the incident has called the said weapon as ‘Baku’ (a type of knife) and stated that it was accused No.9-Tippu, who was holding it. Thus, apart from identifying the weapons, P.W.3 has also shown that even accused No.9 was also holding the weapon and it is his evidence that all the accused have assaulted his father.

35. According to the investigating officer, six weapons identified by the witnesses were recovered at the instance of the accused. He has stated that accused Nos.5, 6, 8 and 10 have given their voluntary statements before him, wherein they have stated that the weapons used by them in the commission of crime have been kept in a bush near gutter/drainage at 8th Mile, Hesaraghatta and the autorickshaw used by them was at Tumkur. Based on the said voluntary statements he (investigating officer) on 1.3.2006 summoned the witnesses P.W.12 and P.W.13 and in their presence at the place shown by the accused, has seized those weapons which were iron rod, long, chopper, from the spot under panchanama Ex.P.11. It is the evidence of P.W.12 and P.W.13 that those weapons were seized in their presence through the accused from a drainage at Hesaraghatta, who have also stated that the investigating officer had summoned them to the police station on 1.3.2006 and shown them four accused who took them along with the police at 8th Mile, Tumkur Road and from near a gutter they took out a gunny bag and from the gunny bag they took out four longs (sword, chopper like weapon). They have identified six weapons at M.O.13 to M.O.16 and also recovered panchanama at Ex.P.11 and their signatures therein.

36. Learned counsel for the appellant in his arguments also submitted that the investigating officer who has stated that he has recorded voluntary statements and based on that recovered all weapons. But he has not stated as to what statement the accused gave before him, as such the recovery does not to be taken as proved. When the evidence of P.W.19, the investigating officer is perused, it goes to show that the investigating officer apart from stating that accused Nos.5, 6, 8 and 10 have stated before him in their voluntary statement that they had kept the weapons used for commission of crime near 8th Mile, Hesaraghatta in a car and autorickshaw to Tumkur. Thus the investigating officer has produced what the accused are said to have stated before him in their voluntary statement regarding the weapons used in the commission of crime. As such, the argument of the learned counsel for the appellant that the recovery cannot be taken as proved, cannot be accepted.

37. On the other hand, the evidence of the investigating officer about the recovery is further corroborated by the evidence of P.W.12 and P.W.13 and the weapons have been identified by both recoveries to the panchas, investigating officers as well P.Ws.1 to 3, the alleged eye witnesses.

38. Lastly, the evidence of P.Ws.1, 2 and 3 is to the effect that P.W.1 who rushed to the rescue of her father while the accused were assaulted her also and she sustained injuries, has been corroborated by the evidence of the doctor i.e. P.W.7 who in his evidence has stated that on the alleged night of the incident he has examined P.W.1, who had come to his hospital with the history of assault on 25.2.2006 around 9 p.m. The doctor has noticed the lacerated wound on the left arm measuring 5 x4 cms, lacerated wound over right leg located on the lateral aspect and measuring 2 cm x 1 cms over the right knee of the injured P.W.1 and has issued wound certificate in that regard. The doctor has identified the same at Ex.P.6 and his signature therein at Ex.P.6(a). The said evidence could not be shaken in his cross examination. On the other hand, a suggestion was made to him to the effect that while mentioning the history of the incident of assault at 9 p.m. with knife and other weapons, it was stated that the same was caused by six persons. By making the said suggestion, the accused however supported that P.W.1 was examined and treated by the doctor (P.W.7) for the alleged injuries on that night. Thus, the evidence of P.W.1 coupled with the medical evidence that she was assaulted by the accused with the deadly weapons corroborated by the evidence of P.Ws.2 and 3 and the medical evidence of P.W.7 to establish that in the incident P.W.1 also was assaulted by the accused with the deadly weapons causing bleeding injuries upon her.

39. The above aspect of the trustworthiness of the evidence of the witnesses i.e. P.Ws.1, 2 and 3 coupled with the evidence of panchas regarding the place of offence. The medical evidence regarding injury and the nature of death, recovery of weapons in the presence of panchas and their supporting evidence as P.W.12 and P.W.13, identification of the weapons, recovery of the blood stained cloths and supporting evidence of P.W.9 and P.W.13, identification of those cloths by P.W.1 corroborates the evidence of the investigating officer that the death of the deceased was a murder and his investigation revealed that it was the accused and accused alone who forming an unlawful assembly, in prosecution, their common object caused the death of the deceased- Hussian and assaulted P.W.1 causing injuries to her.

40. The evidence of P.W.9 and P.W.13 that the panchanama at Ex.P.4 was drawn in their presence and the cloths of the injured – P.W.1 seized in their presence establishes the seizure of the cloths. The evidence of P.W.5 coupled with the evidence of the investigating officer shows that a button knife was recovered at the instance of accused No.7 – Rizwan. P.W.5 has identified the said weapon at M.O.11.

41. Though learned counsel for the appellants in his argument submitted that it is impossible to expect the culprit to retain the weapon with him for six days after the commission of the crime, but there is no reason to suspect that accused No.7 was in possession of the said knife for about six days after the commission of crime. Since the said weapon being a knife and can be kept in the pocket, it is not impossible for a person to keep that small article/weapon for a small period of about six days.

42. Learned counsel for the appellant in his argument also submitted that there is a delay in lodging the complaint, as such, the incident as narrated by the complainant cannot be believed. There is a correction of time in the complaint at Ex.P.1, as such, the said complaint also cannot be believed. According to the prosecution, the incident has occurred on 25.2.2006 at about 9.10 p.m. The complaint at Ex.P.1 goes to show that it was lodged at about 11.00 p.m. on that night. One hour 50 minutes after the incident the complaint has been lodged.

43. As analysed above, the incident of assault and killing of a person(the deceased) and the complainant (daughter of the deceased) is by a group of people. In such a situation, when her father is assaulted by a group of people, the first thing the family members of the injured/deceased are expected to do is to get necessary medical assistance to the injured. P.Ws.1, 2 and 3 have also done the same. They have shifted the injured to nearby Agadi Hospital and from there they shifted him to St. Johns Hospital. It is thereafter the daughter of the deceased has lodged a complaint with the police. Thus, in a city like Bengaluru shifting a person from one place to another place would obviously takes some time. It is in that process, about 1 hour 50 minutes has been taken, which time cannot be considered as a delay, to arrive at such a conclusion. We rely upon the judgment of the Hon’ble Supreme Court in Omprakash v. State of Haryana, (2014) 5 SCC 753, which judgment was relied on by the learned High Court Government Pleader in his argument. In the said case, the incident had taken place at about 3.00 p.m. and thereafter the deceased was carried in a mechanised cart to the Primary Health Centre, where he was administered some treatment, but he succumbed to the injuries. On being informed by the hospital staff, the police arrived at the hospital and recorded the statement of the informant, P.W.l3 and thereafter, First Information Report was registered at 7.45 p.m. The Hon’ble Supreme Court observed that from the sequence of event which include consumption of time in carrying the injured to the hospital, treatment availed of by Prabhu Dayal, information given by the authority concerned of the primary health centre and arrival of police and also taking note of the incident i.e. 24 k.m. from the place of occurrence, it cannot be taken that there was any delay in lodging the FIR. In the case on hand also for the reason noticed above, we do not consider that time of 1 hour 50 minutes taken in lodging the complaint to the police is to be considered as a delay in lodging the FIR.

44. With respect to alteration in the complaint, with regard to the time of registration of the complaint is concerned, there appears to be some alteration in the timings, but the accused could not able to succeed to imbibe any suspicion in that regard either in the cross- examination of the complainant (P.W.1) or in the cross- examination of P.W.19, the investigating officer. Merely because there is a small correction in the timings which could not be suspected that there is some ulterior motive and it cannot be presumed that the said correction showing the time which shows a false timing, as such, it is fatal to the case of prosecution.

45. One more argument of the learned counsel for the appellant was that the complainant at the very first instance before the doctor has stated that the history of incident was assault by six persons, whereas in the charge sheet the prosecution has projected 11 persons, one accused is acquitted, as such there remains 10 persons. Thus, the said discrepancy between information given to the doctor and what was shown in the charge sheet raises a great suspicion. In that regard we are required to see at the first instance the first information report. In the said first information report the complainant has clearly and categorically stated the accused were in a group and followed them in autotickshas. She has named 9 among them specifically and stated few more were accompanying them.

Therefore, at the first instance before the police in the complaint the complainant has stated that accused were nine plus. No doubt, P.W.7, the doctor who treated P.W.1 in the night of the incident has stated in his examination chief that the patient had come to him with the history of assault by some persons. He has not named as to how many were there. However, in his cross-examination he admitted to a suggestion as true that while mentioning the history of incident as assault, it was mentioned as six persons. The MLC report sent by the said hospital to police at Ex.P.27 also shows that the patient claims that she was assaulted near Wilson garden while she was going in an autorickshaw by six persons using knife and rod.

46. Here it cannot be forgotten that the history given to P.W.7 the doctor as true, but not with respect to the assault of the deceased -Hussain by the accused, but it is only with respect to the assault on P.W.1 by the accused. Neither by the evidence of P.W.7 nor by Ex.P.6- wound certificate Ex.P.27- the MLC report, it cannot be inferred that the total number of accused participated in the commission of crime were only six in number. As already observed, those six persons are stated to be the persons who assaulted P.W.1, the injured, but not the deceased as such, at no stretch of imagination it can be taken that it was only six persons who constituted total number of accused in the crime.

47. On the other hand, as already observed above, the very same complainant in her complaint before the police not only has given the total number of accused as nine plus, but also has named specifically nine accused among them. As such, the contention of the learned counsel for the appellants that there is discrepancy in mentioning total number of accused by the complainant and as such, the entire complaint is suspectable, is not acceptable.

48. It is also the argument of the learned counsel for the appellants that Ex.P.1, the complaint/First Information Report is not a complaint and it was prepared after the information received by the investigating officer, as such it has come during the course of investigation. Except making the said argument, no materials to substantiate the same were placed before the court. On the other hand, when the evidence of the complainant and the investigating officer (P.W.1 and P.W.19) are read together, it can be noticed that Ex.P.1 has stated that while they were in the place of the incident after the deceased was assaulted by the accused, the police came to the place in their Hoysala van and shifted the injured to hospital. According to her, the police station was within a distance of 5 minutes walk from the said place. The said aspect has not been denied or disputed from the accused side. According to the investigating officer (P.W.19) on the night of incident at 9.15 p.m, while he was in the police station, he received a telephone call by some body stating that some galata (disturbance) is going on at 8th Cross, Wilson garden. Immediately, he went there only to see that some people had already fled away by assaulting a person and that he was informed that the injured was shifted to a nearby Agadi Hospital. Then he went there and saw the injured person in an unconscious stage. At the request of the family members of the deceased, he shifted the injured to the St.Jhons Hospital and thereafter he took the complaint of C.W.1 and registered it in their police station Crime No.42/2006. Thus the information said to have been received by the investigating officer over the phone was not a clear information of the incident of assault of a person, but it was a mere information about some disturbance in that place. It is only after he went there and enquired C.W.1 he came to know the details of the incident which he promptly and without any delay reduced into writing and registered it as First Information Report in their station Crime No.42/2006. As such, the said argument of the learned counsel for the appellants that the complaint was not an FIR and that it is a statement during the course of investigation, is also not acceptable.

49. Lastly, the argument of the learned counsel for the appellants was with regard to the defence of alibi taken by the accused in the court below. According to the learned counsel for the appellant, accused Nos.1, 2, 3 and 9 have taken the defence of alibi and in that regard they had examined the witnesses from D.W.1 to D.W.15. However, their evidence was not believed by the court below, as such non-acceptance of alibi with respect to accused Nos.1, 2 and 9 was an erroneous finding on the part of the Sessions Court.

50. D.W.1 has stated in his evidence that he carries on a business in chocolates by running a shop and accused No.1 was running an optical shop. On the date of the incident, the accused had been to D.W.1’s house at about 10.45 p.m. and left by 12.30 p.m. However, in his cross-examination, he could not give more details about the nature of business of the accused No.1 and the timing of his business. His examination-in- chief itself also shows that accused No.1 had not been to his house before 10.45 p.m. On the other hand, the case of the prosecution is that the incident has occurred at 9.10 p.m. Thus, there was a time gap of more than 1 hour 30 minutes between the accused No.1 present in the place of incident participating in the crime and said to have been found in the house of D.W.1. Further, D.W.1 has also not produced any material to show that he had the function of 48th day ceremony of his mother in his house on that day, as such the evidence of D.W.1 is not believable.

51. D.W.2 has also given the evidence to the same effect stating that he also runs a shop near to the shop of accused No.1 and that on the night of the incident the accused had gone to his house. The evidence of D.W.2 – Sirajuddin is also not acceptable for the reason that according to D.W.1 when accused No.1 is said to have visited his house on that day night, he was accompanied by Sirajuddin (D.W.2) and the said Sirajuddin, D.W.2 in his evidence no where stated that on the night he joined by the accused had been to the house of D.W.1. Thus the evidence of these witnesses contradicts to each other, as such not believable.

52. D.W.3 has stated that on the date of incident, the accused had not opened his shop. On the other hand, D.W.2 has stated that accused No.1 opened his shop on the said day and there is a discrepancy in the evidence of D.W.2 and D.W.3, as such the evidence of D.W.3 is also not believable.

53. The evidence of D.W.4 is that accused No.1 who was running his shop had not opened his shop one day, but he came to know that due to the death of some person in his area, he did not open the shop. The said evidence takes no where to conclude that accused was not at the place of incident on the alleged night.

54. D.W.5 has categorically stated that he did not know where accused No.1 was on the night of 25.2.2006 when K.P.Z. Hussain died. Thus the evidence of none of the witnesses from D.Ws.1 to 5 could able to establish that accused No.1 was not at the place of incident on the ill-fated night i.e. 25.2.2006 at about 9.10 p.m.

55. D.W.15 was examined to establish that accused No.2 was not at Bengaluru, but at a different place on the date of the alleged incident. The said D.W.15 claiming himself to be a medical practitioner has stated that he is working as a medical officer in a hospital called National Clinic at Bhatkal. In the year 2006, he was working as a Government doctor. After his resignation to the said post in August 2006, he started private practice. In the very same breath, he has also stated that from 24.2.2006 to 26.2.2006, accused No.2 visited his clinic and took treatment under him and that he referred him to Government Hospital, Bhatkal. The statement of the said doctor is contrary to each other. If he were to be in Government service in August 2006 and thereafter started private practice, then he cannot run a clinic as National Clinic in his name and treat the accused No.2 on 24.2.2006 which was nearly six months prior to his retirement and establishing the clinic. Secondly, in his evidence he says that his clinic is at Bhatkal, whereas the document at Ex.D2 shows that it has been issued in the name of primary health centre, Shirali. However, had he given a certificate after treating the injured in his National Clinic as a private practitioner why he should issue a medical certificate in the capacity of a Government Medical Officer of a primary health centre, that too at a different place called Shirali. Thirdly, the medical prescription said to have been issued by him and marked at Ex.P.3 apart from not bearing the signature of the doctor also shows that the said National Clinic is at Shirali, but not at Bhatkal. Admittedly, Shirali and Bhatkal are two different places with different pincodes. As could be seen in the very same Ex.P.3 which also bears a medical bill in the name of accused No.2 issued by Khazi Medicals at Bhatkal. Therefore, the evidence of D.W.2 is also totally unbelievable. Thus the defence of accused No.2 pleading alibi cannot be accepted.

56. With respect to accused No.9 to prove the alibi, he has examined D.Ws.10 to D.W.13. D.W.10 who is the elder sister of accused No.9 has stated that accused was visiting her house to give tuitions to her children, but in her cross-examination, she could not able to give any details about her place of residence and the place of residence of accused No.9. As such, her evidence is also not believable.

57. D.W.11 though has stated that he had been to the house of D.W.10 on the night of incident and that he was with accused No.9 playing Carom Board, is also not believable for the reason that according to D.W.11 the house of sister of accused No.9 i.e. D.W.10 was at Bommanahlli, whereas according to D.W.10 her house was at Jayanagar. As such, regarding the place of residence of D.W.10 there is no uniformity between D.Ws. 10 and 11, as such his evidence is also not trustworthy.

58. D.W.12 and D.W.13 have stated that one day in February 2006 accused No.9 had gone out to attend the obsequies ceremony of a person, but they were unable to tell the exact date and time whey they had been to the house of accused No.9. As such, in the absence of specific date and time, a mere general statement that accused was not found in his house on a particular day cannot be considered as accused was not in the place of incident on that night. Further, non-presence of accused No.9 in his house on that night does not mean that he was not present in the place of incident, which is a totally different place. Thus, the evidence of any of these witnesses could not able to establish the defence of alibi in favour of accused Nos.1, 2 and 9.

59. In a judgment relied upon by the learned HCGP in the case of Vijay Pal v. State ( Govt. of NCT) Delhi, 2015(4) SCC 749, the Hon’ble Apex Court has explained the concept of alibi as below;

” We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant, Illustration (a) given under the provision is worth reproducing in this context:
‘(a)The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that date, A was at Lahore is relevant.’

23. The Latin word alibi means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, he entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”

The Hon’ble Apex Court was pleased to observe that when a plea of alibi is taken by the accused, the burden is upon him to establish the same by positive evidence after onus as regards presence on the spot is established by the prosecution. In that context, the Hon’ble Apex Court also relied upon a few paragraphs from Binay Kumar Singh v. State of Bihar 12 (1997) 1 SCC 283.

60. We must bear in mind the alibi is not an exception for establishing the plea of alibi. Following the said principle in the case on hand also as analysed above, the prosecution could able to satisfactorily established the presence of accused Nos.1, 2 and 9 along with other appellants herein at the scene of offence when the said offence was committed in prosecution of their common object. Therefore, the said accused Nos.1, 2, 9 who have taken the defence of alibi were required to establish their defence of alibi which could over come the evidence put forth by the prosecution and pursue the court to believe that the presence of that particular accused who has taken the defence of alibi, at the scene of offence was highly suspectable. In the instant case, as analysed above, though accused Nos.1, 2 and 9 examined the witnesses on their behalf from D.W.1 to D.W.15, but their evidence was proved to be not trustworthy and cannot be believed to the effect that the accused to whom they are referring to in their evidence could not be shown to have been at a different place at the time of commission of offence than what the prosecution had alleged and established. Therefore, the defence of alibi embraced by accused Nos.1, 2 and 9 has not been established satisfactorily, as such, the arguments of the learned counsel for the appellants that the court below did not appreciate the evidence of the defence side and did not consider the defence of alibi in a proper perspective is not acceptable.

61. Barring this, the accused have not taken any other specific defence that they have made suggestion to P.W.1, P.W.2 and P.W.9 in their cross-examinations that the deceased was assaulted by somebody else, which was the only general defence taken by them without any proof or support in that regard. As such, the defence taken by the accused is in no way can able to introduce any element of suspicion in the case of prosecution.

62. Regarding the motive behind the offence is concerned, it is the argument of the learned counsel for the appellants that the motive which is with respect to the passage between house of the deceased and Masjid is not a strong motive leading any one to commit the alleged offence.

63. On the other hand, learned High Court Government Pleader in his argument submitted that it is not in dispute that the accused are the members of the Masjid. There was a 4 feet passage. The Masjid Committee had blocked the air and light to the said passage and its Committee members were pressurising and threatening the deceased compelling him to quit the premises and also to pay them money. It is in this regard, the deceased had also filed couple of complaints before the police. As such, the appellants decided to take away the life of the deceased and the said motive is at any stretch of imagination cannot be considered as a weak motive in the commission of crime.

64. P.W.1 both in her complaint at the first instance and also in her evidence has stated about the existence of dispute between the Masjid Committee and her father with respect to a passage behind the house of the deceased. She has clearly stated that while the deceased was putting up the construction of the house, the accused had objected to the same stating that the space belongs to the Masjid. It is in that regard, his father had filed a case against them. The accused started troubling the deceased and forcing him to withdraw the complaint lodged by him. According to P.W.1, accused were threatening her father with dire consequences, if he does not withdraw the complaint lodged by him. P.W.1 has stated that the accused were members of the Committee of the said Masjid, they had put up construction without leaving any set back or space and obstructing free flow of light and air to the house of the deceased. At that time, the deceased had lodged a second complaint against them. On that occasion also, the accused more particularly, accused No.1 had threatened the deceased with dire consequences.

65. The same motive also has been attributed by P.W.2 and P.W.3 also in their evidence. P.W.3 has also stated with respect to the said dispute that the accused had frequently visiting their house during day and night and was threatening the deceased of finishing him in case if he failed to withdraw the complaint. Except making denial suggestions in the cross-examination of these three witnesses, nothing could be elicited in their cross- examinations to weaken the statement of P.Ws.1, 2 and 3 regarding the motive behind the crime. The oral evidence of P.Ws.1, 2 and 3 regarding the motive is also corroborated by Ex.P.23, Ex.P.24 and Ex.P.25 which are the complaints given by the deceased to the complainant/ police in the month of September and October 2005 against the Committee members of Noorani Masjid, which is to be adjacent to the house of the complaint/deceased. In those complaints, the deceased has specifically stated that he has been put to life threat by the Committee members of the said Masjid who are obstructing to put up illegal construction in the 4 feet wide passage adjacent to the house of the deceased. Therefore, the prosecution has been able to establish the motive behind the crime. Therefore, it has to be necessary held that the court below in no manner committed any error in pronouncing the verdict of conviction against the present appellants for the offence punishable under sections. 147, 148, 341, 427, 307, 302 read with Section 149 of the IPC.

66. With regard to the sentence part of the impugned judgment, even though the overt act alleged against some of the accused and no such serious overt acts has been alleged against few others, but the court below has considered the liability of each member of the unlawful assembly and they prosecuting the common object of their assembly in the commission of the proven offence, as such, the uniform sentence has been imposed upon all the appellants/accused for a particular offence proven against them. The minimum imprisonment for the offence punishable under Section 302 being the life imprisonment, the court below has imposed the said minimum sentence with sentence to pay fine. Even though the maximum sentence that can be imposed to an offence punishable under section 307 of the IPC, is imprisonment for life which may extend to 10 years and fine, the Sessions Court has imposed a simple imprisonment for a period of 7 years and a fine of Rs.5,000/- each to the appellants/accused. The rest of the proven offences have also been sentenced with a reasonable sentence, as such, the sentence imposed by the Sessions Court for all the appellants/accused herein with respect to the offences for which they were found guilty are in no way be considered as excess and it is in proportion compared to the offences proved.

67. In the circumstances, we do not find any reason to interfere with the judgment of conviction and quantum of sentence imposed by the Sessions Court.

68. Accordingly, we pass the following;

ORDER The appeal is dismissed. The judgment of conviction dated 30.3.2012 and order of sentence dated 2.4.2012 imposed by the Fast Track Sessions Court XVIII, Bangalore City, in S.C.No.719/2006, S.C.No.511/2006, S.C.No.902/2007 and S.C.No.961/2006, are confirmed.

Sd/-

JUDGE Sd/-

JUDGE ykl/MSU

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]]> https://bnblegal.com/landmark/karim-abdul-karim-vs-state-of-karnataka/feed/ 0 Shriram EPC Limited vs. Rioglass Solar SA https://bnblegal.com/landmark/shriram-epc-limited-v-rioglass-solar-sa/ https://bnblegal.com/landmark/shriram-epc-limited-v-rioglass-solar-sa/#respond Wed, 18 Dec 2019 08:34:51 +0000 https://www.bnblegal.com/?post_type=landmark&p=249181 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9515 of 2018 (ARISING OUT OF SLP (CIVIL) NO.13913 OF 2018) M/S SHRIRAM EPC LIMITED …APPELLANT VERSUS RIOGLASS SOLAR SA …RESPONDENT J U D G M E N T R.F. NARIMAN, J. 1. Leave granted. 2. The present appeal arises from the […]

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]]> REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9515 of 2018
(ARISING OUT OF SLP (CIVIL) NO.13913 OF 2018)
M/S SHRIRAM EPC LIMITED …APPELLANT
VERSUS
RIOGLASS SOLAR SA …RESPONDENT
J U D G M E N T

R.F. NARIMAN, J.

1. Leave granted.

2. The present appeal arises from the judgment of a Single Judge of the High Court of Judicature at Madras, dated 09.02.2017, in which a petition filed to enforce a foreign award was allowed. Several grounds were taken before the learned single Judge. We are concerned with only one ground that has been argued before us, namely, that as the award has not been stamped, it cannot be enforced under Sections 48 and 49 of the Arbitration and Conciliation Act, 1996 (“1996 Act”).

3. The brief facts that are necessary for determination of the present controversy are as follows:
3.1. An ICC award was delivered in London on 12.02.2015 by Mr. Christopher Style QC in the following terms:
“363. After consideration of all the factual and legal submissions which have been presented to me and for the reasons set out in full above, I award, declare and adjudge as follows:
(1) I declare that I have no jurisdiction over the Second and Third Respondents.
(2) I declare that Rioglass is not obliged to issue a Performance Bank Guarantee as provided for in clause 6 of the Agreement, as amended by Amendment No.1.
(3) I declare that Rioglass is entitled to sell as scrap the mirrors that it holds in storage in relation to Delivery Four.
(4) I declare that Shriram acted in breach of the Agreement in the respects set out above.
(5) I order Shriram to pay Rioglass €4,366,598.70, consisting of damages amounting to €4,151,570.52 and interest amounting to €215,028.18.”

3.2. Objections dated 21.07.2015 under Section 34 of the Arbitration and Conciliation Act, 1996 were filed by the Appellant which were dismissed on 27.09.2016, stating that a petition under Section 34 would not be maintainable as against a foreign award, citing this Court’s judgment in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552. Meanwhile, the Respondent filed a petition under Section 47 of the 1996 Act, dated 05.08.2015, to enforce the said award. As stated hereinabove, all objections to the said award were rejected by the learned Single Judge on 09.02.2017. An appeal to the Division Bench resulted in an Order dated 14.03.2018, stating that in view of Section 50 of the 1996 Act, the said appeal would not be maintainable. This is how the present SLP has been filed against the decision of the learned Single Judge.

4. Shri K.V. Viswanathan, learned senior advocate, appearing on behalf of the Appellant, has submitted before us, that given the provisions of the Indian Stamp Act, 1899, it is clear that a foreign award would be covered by the said Act. This being so, and stamp duty not having been paid, the said foreign award cannot be enforced. He relied strongly on a judgment of the Punjab and Haryana High Court reported in Gujrals Co. v. M.A. Morris, AIR 1962 P&H 167. According to him, the contrary judgments of the Delhi High Court reported in Naval Gent Maritime Ltd. v. Shivanath Rai Harnarain (I) Ltd., (2009) 163 DLT 391, and the Madhya Pradesh High Court judgment reported in Narayan Trading Co. v. Abcom Trading Pvt. Ltd., (2013) 2 MP LJ 252, are incorrect. According to the learned senior advocate, the Delhi High Court judgment is really a judgment on registration of a foreign award, even though it purports to speak about stamp duty payable. The judgment of the Madhya Pradesh High Court, on the other hand, is not correct in stating that a foreign award would not be included within the term “award” under Schedule I of the Indian Stamp Act, 1899. He relied upon the Gujarat High Court judgment reported in Orient Middle East Lines Ltd., Bombay and Anr. v. Brace Transport Corporation of Monrovia and Ors., AIR 1986 Guj 62, which stated that Article III of the New York Convention would make it clear that stamp duty, being in the nature of fees or charges for recognition and enforcement of a foreign award, can be enforced in accordance with the rules of procedure of the territory in which the award is sought to be enforced. This being so, the New York Convention itself recognizes that foreign awards may have to bear stamp duty for enforcement in the country in which they are sought to be enforced. He further relied upon the 194th Law Commission Report, which had suggested changes insofar as stamp duty is concerned in Part II of the 1996 Act.

5. Learned counsel appearing on behalf of the Respondent, on the other hand, relied strongly upon the judgment of the Delhi High Court as well as the Madhya Pradesh High Court referred to hereinabove. According to the learned counsel, the expression “award” which occurs in Schedule I of the Indian Stamp Act, 1899 applies only to a domestic award and not a foreign award. He relied on the fact that the Indian Stamp Act was enacted in 1899, in which “award” has never been enlarged so as to include foreign awards after the Arbitration (Protocol and Convention) Act, 1937 and/or the Foreign Awards (Recognition and Enforcement) Act, 1961 were enacted. Also, according to the learned counsel, the only requirement for the enforcement of a foreign award is laid down in Section 47 of the Act, which does not require the award to be stamped. A without prejudice argument was also made that under Section 48(2)(b), even if a foreign award were required to be stamped, but is not stamped, enforcement of such award would not be contrary to the fundamental policy of Indian law.

6. Having heard learned counsel for the parties, it is important to first set out the relevant provisions of the Indian Stamp Act, 1899. Section 1 of the Indian Stamp Act, 1899 as it originally stood, reads as follows:
“1. Short title, extent, and commencement.—(1) This Act may be called the Indian Stamp Act, 1899.
(2) It extends to the whole of British India inclusive of Upper Burma, British Baluchistan, the Santal Parganas, and the Pargana of Spiti; and
(3) It shall come into force on the first day of July 1899.” Section 2(14) defines “instrument” as follows:
“2. Definitions.—
xxx xxx xxx
(14) “Instrument” includes every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished, or recorded:”
“Instruments chargeable with duty” are dealt with by Section 3. Section 3 states as follows:
“3. Instruments chargeable with duty.—Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore, respectively, that is to say—
(a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in India on or after the first day of July, 1899;
(b) every bill of exchange payable otherwise than on demand or promissory note drawn or made out of India on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated, in India; and
(c) every instrument (other than a bill exchange or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of India on or after that day relates to any property situate, or to any matter or thing done or to be done, in India and is received in India:
Provided that no duty shall be chargeable in respect of—
(1) any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument;
(2) any instrument for the sale, transfer or other disposition, either absolutely or by way of mortgage or otherwise, of any ship or vessel, or any part, interest, share or property of or in any ship or vessel, registered under the Merchant Shipping Act, 1894, or under Act 19 of 1938, or the Indian Registration of Ships Act, 1841 (10 of 1841) as amended by subsequent Acts.
(3) any instrument executed, by, or, on behalf of, or, in favour of, the Developer, or Unit or in connection with the carrying out of purposes of the Special Economic Zone.
Explanation.—For the purposes of this clause, the expressions “Developer”, “Special Economic Zone” and “Unit” shall have meanings respectively assigned to them in clause (g), (za) and
(zc) of section 2 of the Special Economic Zones Act, 2005.”
Under Sections 33 and 35, instruments that are not duly stamped in accordance with the provisions of the Act are inadmissible in evidence, and any such instrument which is not duly stamped is liable to be impounded as provided in Section 33 of the Act. Item No.12 of Schedule I of the Indian Stamp Act, 1899 reads as follows:

Description of Instrument Proper Stamp-duty
“12. AWARD, that is to say, any decision in writing by an arbitrator or umpire, not being an award directing a partition, on a reference made otherwise than by an order of the Court in the course of a suit.—

(a) where the amount or value of the property to which the award relates as set forth in such award does not exceed Rs. 1000; The same duty as a bond (No. 15) for such amount.
b) in any other case. Five rupees.

Exemption

Award under the Bombay District Municipal Act, 1873 (Bom. Act 6 of 1873), Section 81, or the Bombay Hereditary Offices Act, 1874 (Bom. Act 3 of 1874), Section 18.”

7. The main bone of contention in the present appeal is whether the expression “award” would include a foreign award.

8. In order to determine this question, it is important to see the state of the law insofar as arbitration is concerned in the year of the Indian Stamp Act, 1899. At this point of time, there were two sets of laws dealing with arbitration. The first was contained in the Code of Civil Procedure, 1882. In Part V, Chapter XXXVII spoke of reference to arbitration. Under Sections 506 to 522 of the Code of Civil Procedure, 1882, parties to a suit may apply for an order of reference to arbitration, in which case, the arbitrator or umpire, as the case may be, may deliver an award which ultimately may be enforced by a judgment which is to be according to the award and a decree to follow. By Sections 523 to 526, agreements to refer disputes to arbitration may be filed in Court, and awards delivered thereon. Needless to add, the Civil Procedure Code, 1882 applied to British India.

9. Close on the heels of the Indian Stamp Act, 1899, comes the Indian Arbitration Act, 1899. As per Section 1(2) of this Act, this Act also extended to the whole of British India, but Section 2 made it clear that the Act will apply only in cases where the subject matter submitted to arbitration, if it were the subject of a suit, could be instituted in a Presidency Town. Section 2 of this Act states as follows:
“2. Application.—Subject to the provisions of section 23, this Act shall apply only in cases where, if the subject-matter submitted to arbitration were the subject of a suit, the suit could, whether with leave or otherwise, be instituted in a Presidency-town:
Provided that the Local Government, with the previous sanction of the Governor-General in Council, may, by notification in the local official Gazette, declare this Act applicable in any other local area as if it were a Presidencytown.” Section 4 of the said Act states as follows:
“4. Definitions.—In this Act, unless there is anything repugnant in the subject or context,-
(a) “the Court” means, in the Presidency-towns, the High Court, and, elsewhere, the Court of the District Judge; and
(b) “submission” means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.”
Section 11 then states:
“11. Award to be signed and filed.—(1) When the arbitrators or umpire have made their award, they shall sign it, and shall give notice to the parties of the making and signing thereof, and of the amount of the fees and charges payable to the arbitrators or umpire in respect of the arbitration and award.
(2) The arbitrators or umpire shall at the request of any party to the submission or any person claiming under him, and upon payment of the fees and charges due in respect of the arbitration and award, and of the costs and charges of filing the award, cause the award, or a signed copy of it, to be filed in the Court; and notice of the filing shall be given to the parties by the arbitrators or umpire.
(3) Where the arbitrators or umpire state a special case under section 10, clause (b), the Court shall deliver its opinion thereon; and such opinion shall be added to, and shall form part of, the award.”
Section 15, which is important, states as follows:
“15. Award when filed to be enforceable as a decree.—(1) An award on a submission, on being filed in the Court in accordance with the foregoing provisions, shall (unless the Court remits it to the reconsideration of the arbitrators or umpire, or sets it aside), be enforceable as if it were a decree of the Court.
(2) An award may be conditional or in the alternative.”

10. On a reading of the aforesaid provisions of these Acts, it becomes clear that the only “award” that is referred to in the Indian Stamp Act, 1899 is an award that is made in the territory of British India provided that such award is not made pursuant to a reference made by an order of the Court in the course of a suit. At this point in time, it is important to note that there were several princely states in India governed by sovereign rulers which had their own laws. Arbitration laws, if any, in the aforesaid princely states, if they were to culminate in awards, would not be “awards” under either the Civil Procedure Code, 1882 or the Indian Arbitration Act, 1899. They would therefore be foreign awards insofar as British India is concerned. An award made in a princely state, or in a foreign country, if enforced by means of a suit in British India, would not be covered by the expression “award” contained in Item 12 of Schedule I of the Indian Stamp Act, 1899. Only awards which are decisions in writing by an arbitrator or umpire, made in British India, on a reference made otherwise than by an order of the Court in the course of a suit would be included.

11. This position continued even when the Code of Civil Procedure, 1908 contained a Second Schedule, which substituted the arbitration provisions contained in the Code of Civil Procedure, 1882. Here again, under the Second Schedule, parties to a suit may apply for an order of reference to arbitration and an award would follow. Section 16 of the Second Schedule is important, and states as follows:
“16. Judgment to be according to award.— (1) Where the Court sees no cause to remit the award or any of the matters referred to arbitration for re-consideration in manner aforesaid, and no application has been made to set aside the award, or the Court has refused such application, the Court shall, after the time for making such application has expired, proceed to pronounce judgment according to the award.
(2) Upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except insofar as the decree is in excess of, or not in accordance with, the award.” Under Sections 20 and 21, arbitration without the intervention of a Court is referred to, and awards delivered in such cases are to be incorporated in a judgment by a Court, after which a decree is to follow, which decree then becomes enforceable.

12. Next in line, chronologically speaking, is the Arbitration (Protocol and Convention) Act, 1937, in which, certain foreign awards governed by the Geneva Convention of 1923 were to be recognized and enforced in signatory countries, India being one. In this Act, “foreign award” is defined as follows:
“2. Interpretation.—In this Act “foreign award” means an award on differences relating to matters considered as commercial under the law in force in India, made after the 28th day of July, 1924,—
(a) in pursuance of an agreement for arbitration to which the Protocol set forth in the First Schedule applies;
(b) between persons of whom one is subject to the jurisdiction of some one of such powers as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official Gazette, declare to be parties to the Convention set forth in the Second Schedule, and of whom the other is subject to the jurisdiction of some other of the powers aforesaid; and
(c) in one of such territories as the Central Government being satisfied that reciprocal provisions have been may by like notification, declare to be territories to which the said convention applies, and for the purposes of this Act an award shall not be deemed to be final if any proceedings for the purposes of contesting the validity of the award are pending in the country in which it was made.”

13. The Arbitration Act, 1940 then came into force, repealing both the Arbitration Act, 1899 as well as the Second Schedule to the Code of Civil Procedure, 1908. This Act, under Section 1(2), extended to the whole of India except the State of Jammu and Kashmir. Under this Act, “award” was defined as follows:
“2. Definitions.—
xxx xxx xxx
(b) “award” means an arbitration award;”
Under this Act, Chapter II dealt with arbitration without the intervention of a Court. Section 17 is important, and is set out as follows:
“17. Judgment is terms of award.— Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award.”
Under Chapter III, arbitration with intervention of a Court where there is no suit pending is dealt with, and in Chapter IV, arbitration which arises in references from suits is dealt with. This Act, like its predecessors, also applied only to awards that were made first in British India, and later in the territory of India except the State of Jammu and Kashmir.

14. In 1961, after the New York Convention of 1958, the Foreign Awards (Recognition and Enforcement) Act, 1961, came into force to recognize and enforce New York Convention Awards. Here again, such awards were referred to as “foreign awards” in Section 2 thereof which defines foreign awards as follows:
“2. Definition.—In this Act, unless the context otherwise requires, “foreign award” means an award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960—
(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the Schedule applies; and
(b) in one of such territories as the Central Government being satisfied that reciprocal provisions have been made, may, by notification in the official Gazette, declare to be territories to which the said Convention applies.”

15. As is well-known, the present Arbitration and Conciliation Act, 1996 then came into force and repealed the Arbitration (Protocol and Convention) Act, 1937, The Arbitration Act, 1940, and the Foreign Awards (Recognition and Enforcement) Act, 1961 bringing, with certain important changes, domestic awards within Part I, foreign awards relatable to the New York Convention within Chapter I of Part II, and foreign awards relatable to the Geneva Convention within Chapter II of Part II. In the present Act, under Section 2(1)(c), “arbitral award” is defined as follows:
“2. Definitions.—(1) In this Part, unless the context otherwise requires,—
xxx xxx xxx
(c) “arbitral award” includes an interim award;”
Section 44 in Chapter I of Part II defines a New York Convention award as follows:
“44. Definition.—In this Chapter, unless the context otherwise requires, “foreign award” means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960—
(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and
(b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies.”

Section 53 in Chapter II of Part II defines a Geneva Convention award as follows:

“53. Interpretation.—In this Chapter “foreign award” means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July, 1924,— (a) in pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies, and (b) between persons of whom one is subject to the jurisdiction of some one of such powers as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official Gazette, declare to be parties to the Convention set forth in the Third Schedule, and of whom the other is subject to the jurisdiction of some other of the powers aforesaid, and (c) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by like notification, declare to be territories to which the said Convention applies, and for the purposes of this Chapter an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made.”
The other important sections which have a bearing on the controversy before us are as follows:
“46. When foreign award binding.—Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set-off or otherwise in any legal proceedings in India and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on an award.
47. Evidence.—(1) The party applying for the enforcement of a foreign award shall, at the time of the application, produce before the Court—
(a) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made;
(b) the original agreement for arbitration or a duly certified copy thereof; and
(c) such evidence as may be necessary to prove that the award is a foreign award.
(2) If the award or agreement to be produced under sub-section
(1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.
Explanation.— In this section and in the sections following in this Chapter, “Court” means the High Court having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject-matter of a suit on its original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court.”
xxx xxx xxx
“49. Enforcement of foreign awards.—Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court.”

16. It will thus be seen that “award” under Item 12 of Schedule I of the Indian Stamp Act, 1899 has remained unchanged till date. As has been held by us hereinabove, in 1899, this “award” would refer only to a decision in writing by an arbitrator or umpire in a reference not made by an order of the Court in the course of a suit. This would apply only to such award made at the time in British India, and today, after the amendment of Section 1(2) of the Indian Stamp Act, 1899 by Act 43 of 1955, to awards made in the whole of India except the State of Jammu and Kashmir. This being the case, we are of the view that the expression “award” has never included a foreign award from the very inception till date. Consequently, a foreign award not being includible in Schedule I of the Indian Stamp Act, 1899, is not liable for stamp duty. Shri Viswanathan also relied upon the Tamil Nadu Amendment of the Indian Stamp Act, 1899. The Tamil Nadu Amendment contains the identical definition of “award” as given in Item 12 thereof. The only difference is in the figures contained for stamp duty. Consequently, this does not take the matter very much further.

17. Shri Viswanathan then argued, based on Senior Electric Inspector and Ors. v. Laxminarayan Chopra and Anr., (1962) 3 SCR 146, that an Act must be construed as on date, despite the fact that the definition contained in an old Act may not literally fit the bill. We are afraid that this judgment is wholly distinguishable in that, in the aforesaid case, the definition of “telegraph line” in the Indian Telegraph Act, 1885, was construed as being wide enough to include electric lines used for the purpose of wireless telegraph. This Court held that in a modern progressive society, it would be unreasonable to confine the intention of the legislature to the meaning attributable to a word used at the time the law was made, and, unless a contrary intention appeared, an interpretation should be given to the words used in the statute to take in new facts and situations, if such words are capable of comprehending them. As stated hereinabove, this judgment is wholly distinguishable in that, given the factual scenario of 1899, and the fact that foreign awards existed even then, in princely states as well as foreign countries, no new fact situation has arisen subsequently in order to apply the ratio of the said judgment. Further, we must not forget that the Indian Stamp Act, 1899 is a fiscal statute which must be construed literally. Any ambiguity in the said statute would enure to the benefit of the assessee who has to pay stamp duty. This being the case, Shri Viswanathan’s argument based on the aforesaid judgment, must be rejected.

18. We now come to some of the judgments referred to by counsel for the parties. The Punjab and Haryana High Court judgment (supra), strongly relied upon by Shri Viswanathan, referred to and relied upon Section 3(c) of the Indian Stamp Act, 1899, and held that an instrument mentioned in the Schedule which is executed out of India, being a foreign award, would relate to a matter or thing done or not to be done in India, and that, therefore, stamp duty would be payable on such an award. It is important to note that this judgment does not refer to the definition of “award” in Item 12 of Schedule I at all. For this reason alone, this judgment cannot take us very much further, as it is clear that a foreign award, as has been held by us, is not contained within the expression “award” in Item 12 of Schedule I and is, therefore, not an “instrument” which is taxable under Section 3(c) of the Indian Stamp Act, 1899.

19. The Delhi High Court judgment (supra), strongly relied upon by learned counsel appearing on behalf of the Respondent also does not take us very much further. As has been rightly pointed out by Shri Viswanathan, the said judgment refers to the definition of “foreign award” contained in the 1996 Act, but then goes on to rely upon a Supreme Court judgment, stating that such foreign award would not require registration as it can be enforced as a decree. It further went on to rely upon the Supreme Court judgment in M. Anasuya Devi and Anr. v. M. Manik Reddy and Ors., (2003) 8 SCC 565, to state that the Court, while deciding enforceability of a foreign award under Sections 47 and 48, cannot hold the award non-enforceable on the ground of it being unstamped. This also, strictly speaking, is incorrect, as M. Anasuya (supra) merely stated, in the context of a domestic award, that the question as to whether an award is required to be stamped would be relevant only at the enforcement stage under Section 36 of the 1996 Act and not at the stage of challenge, which is governed by Section 34 of the 1996 Act. We cannot forget that there is no challenge stage so far as a foreign award is concerned – so long as none of the grounds in Section 48 are attracted, the award becomes enforceable as a decree. The stage of enforceability, therefore, has arisen in these cases, and it cannot be said that the ratio of M. Anasuya (supra) would apply so that stamp duty would become payable only at some subsequent stage. This judgment is equally incorrect in stating that Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356, would apply. One sentence in Fuerst Day Lawson (supra) reads, “[T]he only difference as found is that while under the Foreign Awards Act a decree follows, under the new Act the foreign award is already stamped as the decree.” This sentence does not lead to the conclusion, following the judgment in Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., (1999) 9 SCC 334, that under the 1996 Act, a foreign award is considered to be stamped already. All that this sentence means is that the foreign award is to be regarded as a decree. The expression “stamped” means “regarded”. This judgment also does not carry us much further.

20. On the other hand, the Madhya Pradesh High Court judgment (supra) hits nearer home. This judgment, in paragraph 12 thereof, states why foreign awards do not have to suffer stamp duty in the following terms:
“12. The Law on Arbitration in India was substantially contained in three enactments namely, The Arbitration Act, 1940, The Arbitration (Protocol and Convention) Act, 1937 and The Foreign Awards (Recognition and Enforcement) Act, 1961. It was widely felt the 1940 Act, which contains the General Law of Arbitration, has become outdated. The Arbitration and Conciliation Act, 1996 came in force to consolidate and amend the Law relating to Domestic Arbitrations, International Commercial Arbitration, enforcement of foreign arbitral awards and to define the law relating to conciliation, commission on international trade in short (UNCITRAL) Model Law and Rules. Apart from other object, the object of the Act is to provide that every final arbitral award is enforced in the same manner as if it were a decree of the Court. While Arbitration and Conciliation Act, 1996 was enforced, no amendment was made in the definition of award given in the Indian Stamp Act. Similarly, the Schedule which lays down the stamp duty payable on award was not amended by including the foreign award. It appears that law makers while enforcing the Arbitration and Conciliation Act, 1996 was of the view that foreign award shall be enforceable as if it were a decree of the Court, no amendment was brought either in the definition of award or in the Schedule relating to payment of stamp duty on award. Since the definition of award given at Entry No. 11 of the Schedule of the Indian Stamp Act does not cover the foreign award and one of the objects to enforce the new Act was to enforce final award as if it was a decree and keeping in view the law laid down by the Hon’ble Apex Court in the matter of Fuerst Day Lawson Ltd. (supra), wherein the Hon’ble Supreme Court has held that under the new Act the foreign award is already stamped as decree, this Court is of the view that the petition filed by the petitioner has no merits and deserves to be dismissed. In view of this, the petition filed by the petitioner is disposed of holding that foreign award is already stamped and is enforceable as decree.”

21. The reasoning contained in paragraph 12 has our approval, short of the reasoning contained following Fuerst Day Lawson (supra) which, as we have already stated above, did not indicate that foreign awards can never suffer stamp duty.

22. The other judgment heavily relied upon by Shri Viswanathan, namely the Gujarat High Court judgment (supra), merely refers to Article III of the New York Convention to state that so far as procedural aspects relatable to foreign awards are concerned, we must go by the Code of Civil Procedure, and going by the Code of Civil Procedure, the Court at Bhavnagar would have no jurisdiction to enforce the foreign award in the facts of that case. Since Article III of the New York Convention is strongly relied upon by Shri Viswanathan, we need to set it out. It states:
“Article III
Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.”

23. There is no doubt whatsoever that if stamp duties are leviable in India on foreign awards, the imposition should not be substantially more onerous than the stamp duty that is imposed on recognition or enforcement of domestic arbitral awards. For the said Article to apply, stamp duty must first be leviable on a foreign award, which, as we have held earlier in this judgment, is not the case. Equally, reliance upon the 194th Law Commission of India Report, insofar as stamp duty on domestic awards is concerned, would again have little bearing, given our finding that under the present state of the law, foreign awards are not liable to stamp duty under the Indian Stamp Act, 1899.

24. An argument was made by learned counsel for the Respondent that Section 47 of the Act requires three things and only three things to be produced before the Court for enforcement of a foreign award, and that therefore, stamp duty not being one of the three things required, cannot ever be levied. We are afraid that this again is an extreme argument. All that Section 47 deals with is production before the Court of proof of the fact that a foreign award is sought to be enforced. In no manner does Section 47 interdict the payment of stamp duty if it is otherwise payable in law. This argument must thus be rejected. Equally, the argument that under Section 48(2)(b), even if stamp duty is payable on a foreign award, it would not be contrary to the public policy of India, must be rejected. The fundamental policy of Indian law, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, and followed in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49, makes it clear that if a statute like the Foreign Exchange Regulation Act, 1973 dealing with the economy of the country is concerned, it would certainly come within the expression “fundamental policy of Indian law”. The Indian Stamp Act, 1899, being a fiscal statute levying stamp duty on instruments, is also an Act which deals with the economy of India, and would, on a parity of reasoning, be an Act reflecting the fundamental policy of Indian law. This argument on behalf of the Respondent must also, therefore, be rejected.

25. We, therefore, hold that the learned Single Judge of the Madras High Court is correct, and the fact that a foreign award has not borne stamp duty under the Indian Stamp Act, 1899 would not render it unenforceable for the reasons given in our judgment. The appeal accordingly stands dismissed.

………..……………… J.
(R. F. Nariman)
…..…………………… J.
(Indu Malhotra)

New Delhi.
September 13, 2018.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No. 9515 of 2018
(Arising out of SLP (Civil) No. 13913 of 2018)
M/S. SHRIRAM EPC LIMITED …Appellant(s)
VERSUS
RIOGLASS SOLAR SA …Respondent(s)

Date: 13.09.2018 This matter was called on for pronouncement of judgment today.
For Appellant(s) Mr. Snehasish Mukherjee, Adv.

For Respondent(s) Mr. Hiroo Advani, Adv.
Mr. Divyakant Lahoti, Adv.
Mr. Shashank Garg, Adv.
Ms. Amrita Grover, Adv.
Mr. Parikshit Ahuja, Adv.
Mr. Tariq Khan, Adv.

Hon’ble Mr. Justice Rohtinton Fali Nariman pronounced the judgment of the Bench comprising His Lordship and Hon’ble Ms. Justice Indu Malhotra.
Leave granted
The appeal is dismissed in terms of the signed reportable judgment.
Pending applications, if any, shall stand disposed of.

(Shashi Sareen)
AR­cum­PS

(Tapan Kumar Chakraborty)
Branch Officer

(Signed reportable judgment is placed on the file)

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]]> https://bnblegal.com/landmark/shriram-epc-limited-v-rioglass-solar-sa/feed/ 0 The State of Bihar & Ors. vs. Bihar Rajya Bhumi Vikas Bank Samiti https://bnblegal.com/landmark/the-state-of-bihar-ors-v-bihar-rajya-bhumi-vikas-bank-samiti/ https://bnblegal.com/landmark/the-state-of-bihar-ors-v-bihar-rajya-bhumi-vikas-bank-samiti/#respond Wed, 18 Dec 2019 08:32:14 +0000 https://www.bnblegal.com/?post_type=landmark&p=249179 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7314 of 2018 (Arising out of SLP (Civil) No.4475 of 2017) THE STATE OF BIHAR & ORS. …APPELLANTS VERSUS BIHAR RAJYA BHUMI VIKAS BANK SAMITI …RESPONDENT J U D G M E N T R.F. NARIMAN, J. 1. Leave granted. 2. The […]

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]]> REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7314 of 2018
(Arising out of SLP (Civil) No.4475 of 2017)
THE STATE OF BIHAR & ORS. …APPELLANTS
VERSUS
BIHAR RAJYA BHUMI VIKAS BANK SAMITI …RESPONDENT
J U D G M E N T

R.F. NARIMAN, J.

1. Leave granted.

2. The question raised in this appeal pertains to whether Section 34(5) of the Arbitration and Conciliation Act, 1996, inserted by Amending Act 3 of 2016 (w.e.f. 23rd October 2015), is mandatory or directory.

3. The present appeal arises out of an arbitration proceeding that commenced on 24.05.2015. An arbitral award was made on 06.01.2016. A Section 34 petition challenging the said award was filed on 05.04.2016 before the Patna High Court, in which notice was issued to the opposite party by the Court on 18.07.2016. Despite the coming into force of Section 34(5), the common ground between the parties is that no prior notice was issued to the other party in terms of the said Section, nor was the application under Section 34 accompanied by an affidavit that was required by the said sub-section.

4. A learned Single Judge of the Patna High Court, by a judgment dated 06.09.2016, held that the provision contained in Section 34(5) was only directory, following our judgment in Kailash v. Nanhku and Ors., (2005) 4 SCC 480. A Letters Patent Appeal to a Division Bench yielded the impugned order dated 28.10.2016, by which it was held, adverting to the Law Commission Report which led to the 2015 amendment, that the mandatory language of Section 34(5), together with its object, made it clear that the sub-section was a condition precedent to the filing of a proper application under Section 34, and, on the analogy of a notice issued under Section 80 of the Code of Civil Procedure, 1908, being a condition precedent to the filing of a suit against the Government, the Division Bench held that since this mandatory requirement had not been complied with, and as the period of 120 days had run out, the Section 34 application itself would have to be dismissed. In the end, it allowed the appeal and set aside the judgment of the learned Single Judge.

5. Shri Nagendra Rai, learned Senior Advocate appearing on behalf of the Appellants, has argued that the Letters Patent Appeal itself was not maintainable. He further went on to argue that in any event, Section 34(5) and (6) form part of a composite scheme, the object of which is that an application under Section 34 be disposed of expeditiously within one year. He points out that as no consequence is provided if such application is not disposed of within the said period of one year, the aforesaid provisions are only directory, despite the mandatory nature of the language used therein. He also added that procedural provisions ought not to be construed in such a manner that justice itself gets trampled upon. For this purpose, he referred to and relied upon various judgments of this Court.

6. Shri Parag P. Tripathi, learned Senior Advocate appearing on behalf of the Respondent, defended the High Court judgment, both on maintainability as well as on Section 34(5) being a mandatory provision. According to the learned Senior Advocate, despite the fact that no consequence has been provided if the time period of Section 34(6) goes, yet, an application that is filed under Section 34 without complying with the condition precedent as set out in Section 34(5), is an application that is non est in law. He further argued that the consequence that follows, therefore, follows not from sub-section (6) of Section 34 but from subsection (3) thereof, under which, such application cannot be considered if it is beyond the stipulated period and/or extended period mentioned in Section 34(3). He relied upon the Law Commission Report which led to the 2015 amendment, as well as the mandatory nature of the language of Section 34(5). Also, according to the learned Senior Advocate, the vast majority of High Courts have decided in favour of the provision being construed as mandatory, the only discordant note being struck by the Bombay High Court.

7. Section 34(5) and (6) are set out hereunder as follows:
“34. Application for setting aside arbitral award.— xxx xxx xxx (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.”

8. There is no doubt whatsoever that the language of Section 34 does lend itself in support of the argument of Shri Tripathi, as the expressions used are “shall”, “only after” and “prior notice” coupled with such application which again “shall” be accompanied by an affidavit endorsing compliance.

9. The 246th Law Commission Report, which introduced the aforesaid provision, also makes interesting reading, which is set out hereinbelow: “3. The Arbitration and Conciliation Act, 1996 (hereinafter “the Act”) is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980. The Act has now been in force for almost two decades, and in this period of time, although arbitration has fast emerged as a frequently chosen alternative to litigation, it has come to be afflicted with various problems including those of high costs and delays, making it no better than either the earlier regime which it was intended to replace; or to litigation, to which it intends to provide an alternative. Delays are inherent in the arbitration process, and costs of arbitration can be tremendous. Even though courts play a pivotal role in giving finality to certain issues which arise before, after and even during an arbitration, there exists a serious threat of arbitration related litigation getting caught up in the huge list of pending cases before the courts. After the award, a challenge under section 34 makes the award inexecutable and such petitions remain pending for several years. The object of quick alternative disputes resolution frequently stands frustrated.

4. There is, therefore, an urgent need to revise certain provisions of the Act to deal with these problems that frequently arise in the arbitral process. The purpose of this Chapter is to lay down the foundation for the changes suggested in the report of the Commission. The suggested amendments address a variety of issues that plague the present regime of arbitration in India and, therefore, before setting out the amendments, it would be useful to identify the problems that the suggested amendments are intended to remedy and the context in which the said problems arise and hence the context in which their solutions must be seen.
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25. Similarly, the Commission has found that challenges to arbitration awards under sections 34 and 48 are similarly kept pending for many years. In this context, the Commission proposes the addition of sections 34(5) and 48(4) which would require that an application under those sections shall be disposed of expeditiously and in any event within a period of one year from the date of service of notice. In the case of applications under section 48 of the Act, the Commission has further provided a time limit under section 48(3), which mirrors the time limits set out in section 34(3), and is aimed at ensuring that parties take their remedies under this section seriously and approach a judicial forum expeditiously, and not by way of an afterthought …………”

10. There is no doubt that the object of Section 34(5) and (6) is, as has been stated by the Law Commission, the requirement that an application under Section 34 be disposed of expeditiously within a period of one year from the date of service of notice. We have to examine as to whether this, by itself, is sufficient to construe Section 34(5) as mandatory, keeping in view the fact that if the time limit of one year is not adhered to under Section 34(6), no consequence thereof is provided.

11. Some of the judgments of this Court throw considerable light on similar provisions being construed as being only directory in nature. Thus, in Topline Shoes v. Corporation Bank, (2002) 6 SCC 33, Section 13(2)(a) of the Consumer Protection Act, 1986, spoke of a reply being filed by the opposite party “within a period of 30 days or such extended period not exceeding 15 days, as may be granted by the District Forum”. This Court referred to the Statement of Objects and Reasons of the Consumer Protection Act, 1986, which is similar to the object sought to be achieved by the amendment made in Section 34(5) and (6) of the Arbitration and Conciliation Act, 1996, as follows:

“8. The Statement of Objects and Reasons of the Consumer Protection Act, 1986 indicates that it has been enacted to promote and protect the rights and interests of consumers and to provide them speedy and simple redressal of their grievances. Hence, quasi-judicial machinery has been set up for the purpose, at different levels. These quasi-judicial bodies have to observe the principles of natural justice as per clause 4 of the Statement of Objects and Reasons, which reads as under:
“4. To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set up at the District, State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give reliefs of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for noncompliance of the orders given by the quasijudicial bodies have also been provided.”
(emphasis in original)
Thus the intention to provide a time-frame to file reply, is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The provision, however, as framed, does not indicate that it is mandatory in nature. In case the extended time exceeds 15 days, no penal consequences are prescribed therefor. The period of extension of time “not exceeding 15 days”, does not prescribe any kind of period of limitation. The provision appears to be directory in nature, which the consumer forums are ordinarily supposed to apply in the proceedings before them. We do not find force in the submission made by the appellant-in-person, that in no event, whatsoever, the reply of the respondent could be taken on record beyond the period of 45 days. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of “desirability” in strong terms. But it falls short of creating any kind of substantive right in favour of the complainant by reason of which the respondent may be debarred from placing his version in defence in any circumstances whatsoever. It is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time-frame to file reply, as a guideline, and then to exercise its discretion as best as it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principles of natural justice as well. The Forum may refuse to extend time beyond 15 days, in view of Section 13(2)(a) of the Act but exceeding the period of 15 days of extension, would not cause any fatal illegality in the order.”

The Court further held:
“11. We have already noticed that the provision as contained under clause (a) of sub-section (2) of Section 13 is procedural in nature. It is also clear that with a view to achieve the object of the enactment, that there may be speedy disposal of such cases, that it has been provided that reply is to be filed within 30 days and the extension of time may not exceed 15 days. This provision envisages that proceedings may not be prolonged for a very long time without the opposite party having filed his reply. No penal consequences have however been provided in case extension of time exceeds 15 days. Therefore, it could not be said that any substantive right accrued in favour of the appellant or there was any kind of bar of limitation in filing of the reply within extended time though beyond 45 days in all. The reply is not necessarily to be rejected. All facts and circumstances of the case must be taken into account. The Statement of Objects and Reasons of the Act also provides that the principles of natural justice have also to be kept in mind.”

12. In Kailash (supra), this Court was faced with the question whether, after the amendment of Order VIII Rule 1 of the CPC by the Amendment Act of 2002, the said provision must be construed as being mandatory.
The provision is set out in paragraph 26 of the judgment as follows:
“26. The text of Order 8 Rule 1, as it stands now, reads as under:
“1. Written statement.—The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.”
In an instructive judgment, this Court held:
“27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.
xxx xxx xxx
30. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.
xxx xxx xxx
35. Two decisions, having a direct bearing on the issue arising for decision before us, have been brought to our notice, one each by the learned counsel for either party. The learned Senior Counsel for the appellant submitted that in Topline Shoes Ltd. v. Corpn. Bank [(2002) 6 SCC 33] a pari materia provision contained in Section 13 of the Consumer Protection Act, 1986 came up for the consideration of the Court. The provision requires the opposite party to a complaint to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. The Court took into consideration the Statement of Objects and Reasons and the legislative intent behind providing a time-frame to file reply and held: (i) that the provision as framed was not mandatory in nature as no penal consequences are prescribed if the extended time exceeds 15 days, and; (ii) that the provision was directory in nature and could not be interpreted to mean that in no event whatsoever the reply of the respondent could be taken on record beyond the period of 45 days.
xxx xxx xxx
46. We sum up and briefly state our conclusions as under:
xxx xxx xxx
(iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.
xxx xxx xxx”

13. To similar effect are the observations of this Court in Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344 at paragraph 20, which is reproduced hereinbelow:
“20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.”

14. However, a discordant note was struck by a Judgment dated 04.12.2015, reported in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., (2015) 16 SCC 20. A Bench of three learned Judges resurrected the judgment of J.J. Merchant (Dr.) v. Shrinath Chaturvedi, (2002) 6 SCC 635. J.J. Merchant (supra) was distinguished in Kailash (supra) as follows:
“38. The learned counsel for the respondent, on the other hand, invited our attention to a three-Judge Bench decision of this Court in J.J. Merchant (Dr.) v. Shrinath Chaturvedi [(2002) 6 SCC 635] wherein we find a reference made to Order 8 Rule 1 CPC vide paras 14 and 15 thereof and the Court having said that the mandate of the law is required to be strictly adhered to. A careful reading of the judgment shows that the provisions of Order 8 Rule 1 CPC did not directly arise for consideration before the Court and to that extent the observations made by the Court are obiter. Also, the attention of the Court was not invited to the earlier decision of this Court in Topline Shoes Ltd. case [(2002) 6 SCC 33].”
Despite this observation, New India Assurance Co. Ltd. (supra) went on to follow the judgment in J.J. Merchant (supra), and stated:
“25. We are, therefore, of the view that the judgment delivered in J.J. Merchant [J.J. Merchant v. Shrinath Chaturvedi, (2002) 6 SCC 635] holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.
26. There is one more reason to follow the law laid down in J.J. Merchant (supra). J.J. Merchant (supra) was decided in 2002, whereas Kailash [Kailash v. Nanhku, (2005) 4 SCC 480] was decided in 2005. As per law laid down by this Court, while deciding Kailash (supra), this Court ought to have respected the view expressed in J.J. Merchant (supra) as the judgment delivered in J.J. Merchant (supra) was earlier in point of time. The aforestated legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in J.J. Merchant (supra) should be followed.”

15. J.J. Merchant (supra) arose out of a miscellaneous petition which was filed before the National Consumer Disputes Redressal Commission, praying that the complaint filed for alleged medical negligence be decided by the Civil Court, as complicated questions of law arise. A criminal prosecution against the said doctors was also pending. In paragraph 4 of the judgment, the Court stated that some guidelines need to be laid down with regard to the type of cases which the Consumer Forum will not entertain. After noticing that there was an inordinate delay of almost nine years in disposal of the complaint, this Court felt that such delay would not be a ground for rejecting the complaint and for directing the complainant to approach the Civil Court. In answering the contention that complicated questions of fact cannot be decided in summary proceedings, this Court held that speedy trial does not mean that justice cannot be done when questions of fact are to be dealt with and decided. It was in this context of speedy trial that the Court made an observation about the legislative mandate of not granting more than 45 days in submitting the written statement. In fact, the Court was alive to the fact that there was no time frame under the unamended Consumer Protection Act, 1986 for disposing of complaints, appeals and revisions. This Court, therefore, stated:

“23. For reducing the arrears and for seeing that complaints, appeals and revisions are decided speedily and within the stipulated time, we hope that the President of the National Commission would draw the attention of the Government for taking appropriate actions within the stipulated time and see that the object and purpose of the Act is not frustrated.
xxx xxx xxx
14
25. It can be hoped that the National Commission would ensure its best to see that District Forums, State Commissions and the National Commission can discharge its functions as efficiently and speedily as contemplated by the provisions of the Act. The National Commission has administrative control over all the State Commissions inter alia for issuing of instructions regarding adoption of uniform procedure in hearing of the matters etc. It would have also administrative control in overseeing that the functions of the State Commissions or District Forums are discharged in furtherance of the objects and purposes of the Act in the best manner.”
The Court then referred to the Consumer Protection (Amendment) Bill, 2002, which envisaged insertion of sub-section (3-A) in Section 13 of the Act, which reads as under:
“30. ……
“13. (3-A) Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months if it requires analysis or testing of commodities: Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum: Provided further that the District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act.”
(emphasis in original)
31. From the wording of the aforesaid section, it is apparent that there is legislative mandate to the District Forum or the Commissions to dispose of the complaints as far as possible within the prescribed time of three months by ad- hering strictly to the procedure prescribed under the Act. The opposite party has to submit its version within 30 days from the date of the receipt of the complaint by him and the Commission can give at the most further 15 days for some unavoidable reasons to file its version.” The Court was, therefore, alive to the fact that no consequence is prescribed for non-adherence to the time limit of three months. In the result, the case was disposed of with certain directions for avoiding delay in disposal of proceedings under the Consumer Protection Act, 1986.

16. It will thus be seen that there was no focused argument in J.J. Merchant (supra) on whether the provisions of Section 13(2)(a) of the Consumer Protection Act, 1986 could be held to be directory in as much as no consequence was provided for a written statement being filed beyond 45 days. In point of fact, this Court’s judgment in Topline Shoes (supra) was not even cited before the Bench hearing J.J. Merchant (supra).

17. In this view of the matter, it is a little difficult to appreciate how the three-Judge Bench in Kailash (supra) ought to have respected an obiter dictum view of Order VIII Rule 1, CPC in J.J. Merchant (supra). Unfortunately, what was missed in New India Assurance Co. Ltd. (supra) is paragraph 38 of Kailash (supra) which has been extracted hereinabove. The fact that Topline Shoes (supra) was not cited before the three-Judge Bench in J.J. Merchant (supra), as has been held in paragraph 38 of Kailash (supra), would render the aforesaid judgment vulnerable on Section 13(2)(a) of the Consumer Protection Act, 1986 being held to be mandatory. An earlier judgment cannot be overruled sub silentio without upsetting the reasons on which it is based. J.J. Merchant (supra) does not deal with Topline Shoes’ (supra) ratio – namely, that no penal consequence was provided in case the extended time of 15 days was exceeded; that therefore, no substantive right accrued in favour of the claimant; and that the Statement of Objects and Reasons of the Act also provided that the principles of natural justice be kept in mind. The judgment in New India Assurance Co. Ltd. (supra) did not refer to paragraph 38 of Kailash (supra) or appreciate that J.J. Merchant (supra) was distinguished correctly on the ground that Order VIII Rule 1, CPC did not directly arise for consideration in J.J. Merchant (supra). The observations on Order VIII Rule 1, CPC in paragraphs 14 and 15 of J.J. Merchant (supra) were correctly held to be in the nature of obiter dicta, and therefore, not binding on the three-Judge Bench of Kailash (supra). Insofar as Kailash (supra) is concerned, it is a binding judgment on the effect of Order VIII Rule 1, CPC, whose reasoning has been confirmed by a three-Judge Bench in Salem Bar Association (supra).

18. In State v. N.S. Gnaneswaran, (2013) 3 SCC 594, this Court was concerned with whether Section 154(2) of the Code of Criminal Procedure, 1973 was mandatory or directory. The said Section reads as follows: “154. Information in cognizable cases.— xxx xxx xxx (2) A copy of the information as recorded under subsection (1) shall be given forthwith, free of cost, to the informant.” Despite the mandatory nature of the language used in the provision, no consequence was provided if the Section was breached. This Court referred to a number of judgments which laid down tests for determining whether a provision is mandatory or directory, and then held that Section 154(2) was directory.

19. However, Shri Tripathi has relied strongly upon the judgment of Bikhraj Jaipuria v. Union of India, (1962) 2 SCR 880. In that case, this Court held that the provision contained in Section 175(3) of the Government of India Act, 1935, which requires that contracts on behalf of the Government of India shall be executed in the form prescribed, was mandatory in nature, despite the fact that the Section did not set out any consequence for non-compliance. This Court referred to an instructive passage in Maxwell on Interpretation of Statutes, 10th Edn, p. 376, as follows:
“It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may perhaps be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded.”1
It then went on to hold that the provision was in the interest of the general public because the question whether a binding contract has been made between the State and the private individual should not be left open to dispute and litigation. We must not forget that, as has been laid down in Maxwell (supra), considerations of convenience and justice are uppermost, and if general inconvenience or injustice results, without promoting the real aim and object of the enactment, the provision must be declared to be directory.

20. It will thus be seen that Section 34(5) does not deal with the power of the Court to condone the non-compliance thereof. It is imperative to note that the provision is procedural, the object behind which is to dispose of applications under Section 34 expeditiously. One must remember the wise observation contained in Kailash (supra), where the object of such a provision is only to expedite the hearing and not to scuttle the same. All rules of procedure are the handmaids of justice and if, in advancing the cause of justice, it is made clear that such provision should be construed as directory, then so be it.

21. Take the case of Section 80 of the CPC. Under the said provision, the Privy Council and then our Court have consistently taken the view that a suit against the Government cannot be validly instituted until after the expiration of two months after the notice in writing has been delivered to the parties concerned in the manner prescribed by the said Section. If such suit is filed either without such notice or before the said two months’ period is over, such suit has to be dismissed as not maintainable. The reason for this is felicitously set out in Bihari Chowdhary and Anr. v. State of Bihar and Ors., (1984) 2 SCC 627, as follows:

“3. …… When we examine the scheme of the section it becomes obvious that the section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The Government, unlike private parties, is expected to consider the matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted. There is clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months’time to Government or a public officer before a suit can be instituted against them. The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.”

22. Section 80, though a procedural provision, has been held to be mandatory as it is conceived in public interest, the public purpose underlying it being the advancement of justice by giving the Government the opportunity to scrutinize and take immediate action to settle a just claim without driving the person who has issued a notice having to institute a suit involving considerable expenditure and delay. This is to be contrasted with Section 34(5), also a procedural provision, the infraction of which leads to no consequence. To construe such a provision as being mandatory would defeat the advancement of justice as it would provide the consequence of dismissing an application filed without adhering to the requirements of Section 34(5), thereby scuttling the process of justice by burying the element of fairness.

23. However, according to Shri Tripathi, an application filed under Section 34 is a condition precedent, and if no prior notice is issued to the other party, without being accompanied by an affidavit by the applicant endorsing compliance with the said requirement, such application, being a non-starter, would have to be dismissed at the end of the 120 days’ period mentioned in Section 34(3). Apart from what has been stated by us hereinabove, even otherwise, on a plain reading of Section 34, this does not follow. Section 34(1) reads as under:
“34. Application for setting aside arbitral award.—(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).” What is conspicuous by its absence is any reference to sub-section (5). The only requirement in Section 34(1) is that an application for setting aside an award be in accordance with sub-sections (2) and (3). This, again, is an important pointer to the fact that even legislatively, subsection (5) is not a condition precedent, but a procedural provision which seeks to reduce the delay in deciding applications under Section 34. One other interesting thing needs to the noted – the same Amendment Act brought in a new Section 29A. This provision states as follows:
“29A. Time limit for arbitral award.— (1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. Explanation.— For the purpose of this sub-section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment.
(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree.
(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.
(4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: Provided that while extending the period under this subsection, if the court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay.”

24. It will be seen from this provision that, unlike Section 34(5) and (6), if an Award is made beyond the stipulated or extended period contained in the Section, the consequence of the mandate of the Arbitrator being terminated is expressly provided. This provision is in stark contrast to Section 34(5) and (6) where, as has been stated hereinabove, if the period for deciding the application under Section 34 has elapsed, no consequence is provided. This is one more indicator that the same Amendment Act, when it provided time periods in different situations, did so intending different consequences.

25. Shri Tripathi then argued that Section 34(5) is independent of Section 34(6) and is a mandatory requirement of law by itself. There are two answers to this. The first is that sub-section (6) refers to the date on which the notice referred to in sub-section (5) is served upon the other party. This is for the reason that an anterior date to that of filing the application is to be the starting point of the period of one year referred to in Section 34(6). The express language of Section 34(6), therefore, militates against this submission of Shri Tripathi. Secondly, even if subsection (5) be construed to be a provision independent of sub-section (6), the same consequence in law is the result – namely, that there is no consequence provided if such prior notice is not issued. This submission must therefore fail.

26. We come now to some of the High Court judgments. The High Courts of Patna,2 Kerala,3 Himachal Pradesh,4 Delhi,5 and Gauhati6 have all taken the view that Section 34(5) is mandatory in nature. What is strongly relied upon is the object sought to be achieved by the provision together with the mandatory nature of the language used in Section 34(5). Equally, analogies with Section 80, CPC have been drawn to reach the same result. On the other hand, in Global Aviation Services Private Limited v. Airport Authorities of India, 7 the Bombay High Court, in answering question 4 posed by it, held, following some of our judgments, that the provision is directory, largely because no consequence has been provided for breach of the time limit specified. When faced with the argument that the object of the provision would be rendered otiose if it were to be construed as directory, the learned Single Judge of the Bombay High Court held as under:
“133. Insofar as the submission of the learned counsel for the respondent that if section 34(5) is considered as directory, the entire purpose of the amendments would be rendered otiose is concerned, in my view, there is no merit in this submission made by the learned counsel for the respondent. Since there is no consequence provided in the said provision in case of non-compliance thereof, the said provision cannot be considered as mandatory. The purpose of avoiding any delay in proceeding with the matter expeditiously is already served by insertion of appropriate rule in Bombay High Court (Original Side) Rules. The Court can always direct the petitioner to issue notice along with papers and proceedings upon other party before the matter is heard by the Court for admission as well as for final hearing. The vested rights of a party to challenge an award under section 34 cannot be taken away for non-compliance of issuance of prior notice before filing of the arbitration petition.”
The aforesaid judgment has been followed by recent judgments of the High Courts of Bombay8 and Calcutta.9

27. We are of the opinion that the view propounded by the High Courts of Bombay and Calcutta represents the correct state of the law. However, we may add that it shall be the endeavour of every Court in which a Section 34 application is filed, to stick to the time limit of one year from the date of service of notice to the opposite party by the applicant, or by the Court, as the case may be. In case the Court issues notice after the period mentioned in Section 34(3) has elapsed, every Court shall endeavour to dispose of the Section 34 application within a period of one year from the date of filing of the said application, similar to what has been provided in Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This will give effect to the object sought to be achieved by adding Section 13(6) by the 2015 Amendment Act.

28. We may also add that in cases covered by Section 10 read with Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months, as stipulated. Appeals which are not so covered will also be disposed of as expeditiously as possible, preferably within one year from the date on which the appeal is filed. As the present appeal has succeeded on Section 34(5) being held to be directory, we have not found it necessary to decide Shri Rai’s alternative plea of maintainability of the Letters Patent Appeal before the Division Bench.

29. As a result, the appeal is allowed and the judgment of the Patna High Court is set aside. The Section 34 petition that has been filed in the present case will now be disposed of on its merits.

………..……………… J.
(R. F. Nariman)
…..…………………… J.
(Indu Malhotra)

New Delhi.
July 30, 2018.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL No. 7314 of 2018
(Arising out of SLP (Civil) No. 4475 of 2017)
THE STATE OF BIHAR AND ORS. …Appellant(s)
VERSUS
BIHAR RAJYA BHUMI VIKAS BANK SAMITI JHARKHAND …Respondent(s)

Date : 30.07.2018 This matter was called on for pronouncement of judgment today.

For Appellant(s) Mr. N.Rai, Sr. Adv.
Mr. Gopal Singh , Adv.
Mr. Manish Kumar, Adv.
Mr. Shivam Singh, Adv.
Mr. Aditya Raina, Adv.
Mr. Shreyas Jain, Adv.
Ms. Aprajita Sud, Adv.
Mr. Kumar Milind, Adv.

For Respondent(s) Mr. Jayant Kumar Mehta, Adv.

Hon’ble Mr. Justice Rohinton Fali Nariman pronounced the judgment of the Bench comprising His Lordship and Hon’ble Ms. Justice Indu Malhotra.
Leave granted
The appeal is allowed in terms of the signed reportable judgment.
Pending applications, if any, shall stand disposed of.

(Shashi Sareen)
AR­cum­PS

(Saroj Kumari Gaur)
Branch Officer

(Signed reportable judgment is placed on the file)

FOOTNOTE
1. Bikhraj Jaipuria v. Union of India, (1962) 2 SCR 880, para 16.
2. Bihar Rajya Bhumi Vikas Bank Samiti v. State of Bihar and Ors., L.P.A. No. 1841 of 2016 in C.W.J.C. No. 746 of 2016 [decided on 28.10.2016].
3. Shamsudeen v. Shreeram Transport Finance Co. Ltd., Arb. A. No. 49 of 2016 [decided on 16.02.2017].
4. Madhava Hytech Engineers Pvt. Ltd. v. The Executive Engineers and Ors., O.M.P. (M) No. 48 of 2016 [decided on 24.08.2017].
5. Machine Tool (India) Ltd. v. Splendor Buildwell Pvt. Ltd. and Ors., O.M.P. (COMM.) 199- 200 of 2018 [decided on 29.05.2018].
6. Union of India and Ors. v. Durga Krishna Store Pvt. Ltd., Arb. A. 1 of 2018 [decided on 31.05.2018].
7. Commercial Arbitration Petition No. 434 of 2017 [decided on 21.02.2018].
8. Maharashtra State Road Development Corporation Ltd. v. Simplex Gayatri Consortium and Ors., Commercial Arbitration Petition No. 453 of 2017 [decided on 19.04.2018].
9. Srei Infrastructure Finance Limited v. Candor Gurgaon Two Developers and Projects Pvt. Ltd., A.P. No. 346 of 2018 [decided on 12.07.2018].

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]]> https://bnblegal.com/landmark/the-state-of-bihar-ors-v-bihar-rajya-bhumi-vikas-bank-samiti/feed/ 0 M/s. Lion Engineering Consultants Vs. State of Madhya Pradesh & Ors. https://bnblegal.com/landmark/m-s-lion-engineering-consultants-vs-state-of-madhya-pradesh-ors/ https://bnblegal.com/landmark/m-s-lion-engineering-consultants-vs-state-of-madhya-pradesh-ors/#respond Wed, 18 Dec 2019 08:28:54 +0000 https://www.bnblegal.com/?post_type=landmark&p=249176 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION [Civil Appeal Nos. 8984-8985 of 2017] M/S. LION ENGINEERING CONSULTANTS …APPELLANTS VERSUS STATE OF MADHYA PRADESH & ORS. …RESPONDENT O R D E R 1. We have heard learned counsel for the parties. 2. The matter arising out of a dispute in execution of a works […]

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]]> IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
[Civil Appeal Nos. 8984-8985 of 2017]
M/S. LION ENGINEERING CONSULTANTS …APPELLANTS
VERSUS
STATE OF MADHYA PRADESH & ORS. …RESPONDENT
O R D E R

1. We have heard learned counsel for the parties.

2. The matter arising out of a dispute in execution of a works contract was referred to the Arbitrator by the High Court on 4.09.2008. The Arbitrator made his Award dated 10.07.2010 in favour of the appellant. It was challenged under Section 34 of the Arbitration and Conciliation Act, 1996 (“the Act”) before the Seventh Additional District Judge, Bhopal by the respondent-State of M.P. The respondent sought to amend its objections after three years which was rejected by the trial Court. On a petition under Article 227 of the Constitution of India, the High Court has allowed the said amendment.

3. Learned counsel for the appellant submitted that the amendment could not be allowed beyond the period of limitation which affected the vested rights of a party. It 2 was also submitted that the objection having not been raised under Section 16(2) of the Act before the Arbitrator, could not be raised under Section 34 of the Act. In support of this submission reliance has been placed on MSP Infrastructure Ltd. vs. Madhya Pradesh Road Development Corporation Ltd. reported in (2015) 13 SCC 713.

4. Learned Advocate General for the State of M.P. submitted that the amendment sought is formal. Legal plea arising on undisputed facts is not precluded by Section 34(2)(b) of the Act. Even if an objection to jurisdiction is not raised under Section 16 of the Act, the same can be raised under Section 34 of the Act. It is not even necessary to consider the application for amendment as it is a legal plea, on admitted facts, which can be raised in any case. He thus submits the amendment being unnecessary is not pressed. Learned Advocate General also submitted that observations in M/s MSP Infrastructure Ltd. (supra), particularly in Paragraphs 16 and 17 do not laid down correct law.

5. We find merit in the contentions raised on behalf of the State. We proceed on the footing that the amendment being beyond limitation is not to be allowed as the amendment is not pressed.

6. We do not see any bar to plea of jurisdiction being raised by way of an objection under Section 34 of the Act even if no such objection was raised under Section 16.

7. We may quote the observations from M/s MSP Infrastructure (supra):

“16. It is not possible to accept this submission. In the first place, there is nothing to warrant the inference that all objections to the jurisdiction of the Tribunal cannot be raised under Section 16 and that the Tribunal does not have power to rule on its own jurisdiction.

Secondly, Parliament has employed a different phraseology in Clause (b) of Section 34. That phraseology is “the subject matter of the dispute is not capable of settlement by arbitration.” This phrase does not necessarily refer to an objection to ‘jurisdiction’ as the term is well known. In fact, it refers to a situation where the dispute referred for arbitration, by reason of its subject matter is not capable of settlement by arbitration at all. Examples of such cases have been referred to by the Supreme Court in Booz Allen and Hamilton Inc. V/s. SBI Home Finance Limited (2011) 5 SCC 532. This Court observed as follows:-

“36. The well-recognised examples of non-arbitrable disputes are:

(i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences;

(ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters;

(iv) insolvency and winding-up matters;

(v) testamentary matters (grants of probate, letters of administration and succession certificate); and

(vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.”

The scheme of the Act is thus clear. All 4 objections to jurisdiction of whatever nature must be taken at the stage of the submission of the statement of defence, and must be dealt with under Section

16 of the Arbitration Act, 1996. However, if one of the parties seeks to contend that the subject matter of the dispute is such as cannot be dealt with by arbitration, it may be dealt under Section 34 by the Court.

17. It was also contended by Shri Divan, that the newly added ground that the Tribunal under the Arbitration Act, 1996 had no jurisdiction to decide the dispute in question because the jurisdiction lay with the Tribunal under the M.P. Act of 1983, was a question which can be agitated under sub-clause (ii) of clause (b) of sub-section (2) of Section 34 of the Arbitration Act, 1996. This provision enables the court to set- aside an award which is in conflict with the public policy of India. Therefore, it is contended that the amendment had been rightly allowed and it cannot be said that what was raised was only a question which pertained to jurisdiction and ought to have been raised exclusively under Section 16 of the Arbitration Act, 1996, but in fact was a question which could also have been raised under Section 34 before the Court, as has been done by the Respondent.

This submission must be rejected. The contention that an award is in conflict with the public policy of India cannot be equated with the contention that Tribunal under the Central Act does not have jurisdiction and the Tribunal under the State Act, has jurisdiction to decide upon the dispute. Furthermore, it was stated that this contention might have been raised under the head that the Arbitral Award is in conflict with the public policy of India. In other words, it was submitted that it is the public policy of India that arbitrations should be held under the appropriate law.

It was contended that unless the arbitration was held under the State Law i.e. the M.P. Act that it would be a violation of the public policy of India. This contention is misconceived since the intention of providing that the award should not be in conflict with the public policy of India is referable to the public policy of India as a whole i.e. the policy of the Union of India and not merely the policy 5 of an individual state. Though, it cannot be said that the upholding of a state law would not be part of the public policy of India, much depends on the context. Where the question arises out of a conflict between an action under a State Law and an action under a Central Law, the term public policy of India must necessarily be understood as being referable to the policy of the Union. It is well known, vide Article 1 of the Constitution, the name ‘India’ is the name of the Union of States and its territories include those of the States.”

8. Both stages are independent. Observations in Paragraphs 16 and 17 in MSP Infrastructure (supra) do not, in our view, lay down correct law. We also do not agree with the observation that the Public policy of India does not refer to a State law and refers only to an All India law.

9. In our considered view, the public policy of India refers to law in force in India whether State law or Central law. Accordingly, we overrule the observations to the contrary in Paragraphs 16 and 17 of the judgment in MSP Infrastructures Ltd. (supra).

10. Since amendment application is not pressed, the appeal is rendered infructuous. The impugned order is set aside.

11. The matter may now be taken up by the trial court for consideration of objections under Section 34 of the Central Act. It will be open for the respondents to argue that its objection that the Act stands excluded by the M.P. Madhyastham Adhikaran Adhiniyam, 1983 could be raised even without a formal pleading, being purely a legal plea. It will also be open to the appellant to argue to the contrary. We leave the question to be gone into by the concerned court.

The appeals are disposed of accordingly.

…………………….J.
(ADARSH KUMAR GOEL)
…………………….J.
(ROHINTON FALI NARIMAN)
…………………….J.
(UDAY UMESH LALIT)

NEW DELHI,
MARCH 22, 2018

M/S MMC Projects India Pvt. Ltd. Vs. Gujarat State Electricity Corporation Ltd. & ANR.

[Special Leave Petition (C) No. 15059 of 2011]

O R D E R

It is not disputed that for purposes of decision of the question arising in the present case the provisions of Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 are in pari materia to the provisions of M.P. Madhyastham Adhikaran Adhiniyam, 1983 which have been considered by this Court vide Order dated 8.03.2018 in Civil Appeal No. 974/2012 titled as “Madhya Pradesh Rural Road Development Authority & Anr. vs. M/s L.G. Chaudhary Engineers and Contractors.”

In view of above, this petition is dismissed.

……………………..J.
(ADARSH KUMAR GOEL)
……………………..J.
(ROHINTON FALI NARIMAN)
……………………..J.
(UDAY UMESH LALIT)

NEW DELHI,

MARCH 22, 2018

The State of Bihar & Ors. Versus M/S. Brahmaputra Infrastructure Limited

[Civil Appeal No.3344 of 2018 arising out of SLP (C) No(S). 18212 of 2017]

The State of Bihar & Ors. Vs. M/S. Supreme Brahmaputra (JV)

[Civil Appeal No.3345 of 2018 arising out of SLP (C) No(S). 21434 of 2017]

O R D E R

(1) Leave granted. We have heard learned counsel for the parties.

(2) The State is aggrieved by the appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 (the Central Act) on the ground that the said Act is excluded by the Bihar Public Works Contracts Arbitration Tribunal Act, 2008 (Bihar Act 21 of 2008) (the State Act).

(3) To appreciate the plea raised, it is necessary to refer to the scheme of the State Act as reflected in some of the key provisions. Sections 8, 9 and 22 of the State Act are as follows:

“8. Act to be in addition to Arbitration & Conciliation Act, 1996. – Notwithstanding anything contained in this Act, and of the provisions shall be in addition to and supplemental to Arbitration & Conciliation Act, 1996 and in case any of the provision contained herein is construed to be in conflict with Arbitration Act, then the latter Act shall prevail to the extent of conflict.

9. Reference to Tribunal and making of award.-

(1) Where any dispute arises between the parties to the contract, either party shall, irrespective of whether such contract contains an arbitration clause or not refer, within one year from the date on which the dispute has arisen, such dispute in writing to the Tribunal for arbitration in such form and accompanied by such documents or other evidence and by such fees, as may be prescribed.

(2) On receipt of a reference under subsection (10, the Tribunal may, if satisfied after such inquiry as it may deem fit to make, that the requirements under this Act in relation to the reference are complied with, admit such reference and where the Tribunal is not so satisfied, it may reject the reference summarily.

(3) Where the Tribunal admits the reference under sub-section (2), it shall, after recording evidence if necessary, and after perusal of the material on record and on affording and opportunity to the parties to submit their argument, make an award or an interim award, giving its reasons therefor.

(4) The Tribunal shall use all reasonable dispatch in entering on and proceeding with the reference admitted by it and making the award, and an endeavour shall be made to make an award within four months from the date on which the Tribunal had admitted the reference.

(5) The award including the interim award made by the Tribunal shall, subject to an order, if any made under Section – 12 or 13, be final and binding on the parties to the dispute.

(6) An award including an interim award as confirmed or varied by an order, if any, made under Section- 12 or 13 shall be deemed to be a decree within the meaning of section-2 of the 10 Code of Civil Procedure, 1908 of the principal Court of original jurisdiction within the local limits whereof the award or the interim award has been made and shall be executed accordingly.

22. Overriding effect of this Act.- Notwithstanding any thing contained in any other Law, Rule, Order, Scheme, or Contract Agreement entered into before or after commencement of this Act, any dispute as defined in Section 2(e) of this Act shall be regulated under the provisions of this Act, Rules and Regulations framed thereunder, and absence of arbitration clause in any contract agreement shall not have effect excluding any dispute from the purview of this Act.”

(4) It is not in dispute that the parties have executed agreement dated 22nd June, 2012, providing for appointment of an arbitrator as per provisions of the Central Act. Relevant portion of Clause 25 of the said Agreement is as follows: “The arbitration shall be conducted in accordance with provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force shall apply to the arbitration proceeding under the clause.”

(5) The scheme of Sections 8, 9 and 22 of the State Act shows that in the absence of an agreement stipulating the applicability of the Central Act, the State Act applies to works contracts. Since in the present cases, an arbitration agreement exists and stipulates applicability of the Central Act, the State Act will not apply. We, thus, do not find any ground to interfere with the impugned order.

(6) The appeals are dismissed. It will, however, be open to the appellant-State to move the High Court for change of Arbitrator, if a case to this effect is made out on an objection of neutrality, as submitted by learned counsel for the State.

(7) Before parting with this order, we consider it appropriate to deal with the submission raised by learned counsel for the respondent(s) that Section 4(3)(b) of the State Act is patently unconstitutional. The said section is as follows:

“Section 4. Terms and conditions of service of the Chairman and other members of Tribunal.-

(3) (b) The Chairman and any other member shall hold the office at the pleasure of the Government, provided that; in case of premature termination; they shall be entitled to three months pay & allowances in lieu of compensation.”

(8) We are of the view that a provision that the tenure of the Chairman and other members of the Arbitration Tribunal at the pleasure of the Government is inconsistent with the constitutional scheme, particularly Article 14 of the Constitution of India. Section 4(1) of the State Act provides for a three year tenure or till the age of 70 years whichever is earlier. Termination of the said tenure cannot be at pleasure within the term stipulated as the arbitration tribunal has quasi judicial functions to perform. Any termination of the service of such member by a party to the dispute would interfere directly with the impartiality and independence expected from such member. The said provision is, thus, manifestly arbitrary and contrary to the Rule of Law. Accordingly, we declare the said provision to be unconstitutional.

……………………..J.
(ADARSH KUMAR GOEL)
……………………..J.
(ROHINTON FALI NARIMAN)
……………………..J.
(UDAY UMESH LALIT)

New Delhi,
March 22, 2018.

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]]> https://bnblegal.com/landmark/m-s-lion-engineering-consultants-vs-state-of-madhya-pradesh-ors/feed/ 0 M/s Simplex Infrastructure Ltd Vs Union Of India https://bnblegal.com/landmark/m-s-simplex-infrastructure-ltd-vs-union-of-india/ https://bnblegal.com/landmark/m-s-simplex-infrastructure-ltd-vs-union-of-india/#respond Tue, 17 Dec 2019 11:54:14 +0000 https://www.bnblegal.com/?post_type=landmark&p=249163 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.11866 OF 2018 (@ SPECIAL LEAVE PETITION (C) NO 17521 OF 2017) M/S SIMPLEX INFRASTRUCTURE LTD ..APPELLANT VERSUS UNION OF INDIA ..RESPONDENT J U D G M E N T Dr Dhananjaya Y Chandrachud, J 1. The present appeal arises from the judgment […]

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]]> REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11866 OF 2018
(@ SPECIAL LEAVE PETITION (C) NO 17521 OF 2017)
M/S SIMPLEX INFRASTRUCTURE LTD ..APPELLANT
VERSUS
UNION OF INDIA ..RESPONDENT
J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1. The present appeal arises from the judgment of a learned Single Judge of the High Court of Calcutta by which the respondent’s application for condoning a delay of 514 days in filing an application under Section 34 of the Arbitration and Conciliation Act, 1996 (‘the 1996 Act’) was allowed.1

2. The appellant, who is a contractor, entered into an agreement for the construction of 821 units of permanent shelters in the tsunami-hit Andaman and Nicobar Islands with the Union of India, represented by the Executive Engineer, Andaman Central Division, Central PWD, Port Blair.2 The scope of work involved the construction of single storied permanent shelters, including internal water supply, sanitary installation and internal electrification. Due to differences with regard to the performance of the construction work, the parties were referred to arbitration. On 27 October 2014, the arbitrator made an award in favour of the appellant and directed the respondent to pay a sum of ₹9,96,98,355/- with simple interest @ 10% per annum from 1 January 2009 till actual payment. The respondent received the copy of the award on 31 October 2014.

3. Aggrieved by the award, the respondent filed an application3 under Section 34 of the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award. During the pendency of the arbitration proceedings, the appellant had filed an application4 under Section 9 of the 1996 Act before the High Court of Calcutta praying for an injunction on encashment of bank guarantee against the respondent and the application was duly contested by the respondent.

4. On 12 February 2016, the District Judge dismissed the respondent’s application under Section 34 of the 1996 Act for want of jurisdiction. The District Judge observed:
“…According to the provision of Section 42 of the Arbitration and Conciliation Act, when an application has been made regarding an arbitration agreement before any Court under the same part; that Court shall only have jurisdiction over the arbitration proceedings and all subsequent application arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court.
In this case the parties have preferred an application under Section 9 of the Arbitration and Conciliation Act before the Hon’ble High Court of Kolkata… Thus, it is clear to me that this Appellant Court has no jurisdiction to entertain this appeal according to Section 42 of the Arbitration and Conciliation Act.”

5. On 28 March 2016, the respondent filed an application5 under Section 34 before the High Court of Calcutta for challenging the arbitral award dated 27 October 2014, along with an application6 for condonation of a delay of 514 days. The respondent justified the delay on ground of there being a bona fide mistake in filing the application before the wrong forum and the respondent’s counsel causing delay due to which necessary formalities were not complied with within the prescribed time.

6. On 27 April 2016, the learned Single Judge of the High Court allowed the respondent’s application and condoned the delay of 514 days. The High Court held:
“After considering the submissions made by the learned advocate for the applicant/petitioner and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing the application, being AP No. 224 of 2016 and as such the delay is condoned…”

7. The issue which has been raised before this Court is whether the learned Single Judge was justified in condoning a delay of 514 days by the respondent in filing the application under Section 34. In dealing with this issue, this Court needs to assess whether the benefit of Sections 5 and Section 14 of the Limitation Act can be extended to the respondent, and if so, whether a delay beyond the specific statutory limitation prescribed under Section 34(3) of the 1996 Act could be condoned.

8. Section 34 of the Arbitration and Conciliation Act, 1996 provides thus:
“34. Application for setting aside arbitral award.— (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3)… (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”
Section 34 provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award “in accordance with” sub-section (2) and sub-section (3). Sub-section (2) relates to the grounds for setting aside an award. An application filed beyond the period mentioned in sub-section 3 of Section 34, would not be an application “in accordance with” that sub-section. By virtue of Section 34(3), recourse to the court against an arbitral award cannot be beyond the period prescribed. Sub-section (3) of Section 34, read with the proviso, makes it abundantly clear that the application for setting aside the award on one of the grounds mentioned in sub-section (2) will have to be made within a period of three months from the date on which the party making that application receives the arbitral award. The proviso allows this period to be further extended by another period of thirty days on sufficient cause being shown by the party for filing an application. The intent of the legislature is evinced by the use of the words “but not thereafter” in the proviso. These words make it abundantly clear that as far as the limitation for filing an application for setting aside an arbitral award is concerned, the statutory period prescribed is three months which is extendable by another period of upto thirty days (and no more) subject to the satisfaction of the court that sufficient reasons were provided for the delay.

9. Section 5 of the Limitation Act, 1963 provides thus:
“5. Extension of prescribed period in certain cases. —Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation. —The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”
Section 5 of the Limitation Act, 1963 deals with the extension of the prescribed period for any appeal or application subject to the satisfaction of the court that the appellant or applicant had sufficient cause for not preferring the appeal or making the application within the prescribed period. Section 5 of the Limitation Act, 1963 has no application to an application challenging an arbitral award under Section 34 of the 1996 Act. This has been settled by this Court in its decision in Union of India v Popular Construction Company7 , where it held as follows –
“As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result.
…Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act… ”

10 Section 14 of the Limitation Act, 1963 provides thus:
“14. Exclusion of time of proceeding bona fide in court without jurisdiction. —
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation. —For the purposes of this section,—
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.”
Section 14 of the Limitation Act deals with the “exclusion of time of proceeding bona fide” in a court without jurisdiction, subject to satisfaction of certain conditions. The question whether Section 14 of the Limitation Act would be applicable to an application submitted under Section 34 of the 1996 Act has been answered by this Court in Consolidated Engineering Enterprises v Principal Secretary, Irrigation Department8 . This court observed thus:
“At this stage it would be relevant to ascertain whether there is any express provision in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act. On review of the provisions of the Act of 1996 this Court finds that there is no provision in the said Act which excludes the applicability of the provisions of Section 14 of the Limitation Act to an application submitted under Section 34 of the said Act. On the contrary, this Court finds that Section 43 makes the provisions of the Limitation Act, 1963 applicable to arbitration proceedings. The proceedings under Section 34 are for the purpose of challenging the award whereas the proceeding referred to under Section 43 are the original proceedings which can be equated with a suit in a court. Hence, Section 43 incorporating the Limitation Act will apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub-section (4) of Section 43, inter alia, provides that where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings with respect to the dispute so submitted. If the period between the commencement of the arbitration proceedings till the award is set aside by the court, has to be excluded in computing the period of limitation provided for any proceedings with respect to the dispute, there is no good reason as to why it should not be held that the provisions of Section 14 of the Limitation Act would be applicable to an application submitted under Section 34 of the Act of 1996, more particularly where no provision is to be found in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The jurisdiction under Section 34 of the Act, cannot be exercised suo motu. The total period of four months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the Act of 1996 would be unduly oppressive, if it is held that the provisions of Section 14 of the Limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of four months. From the scheme and language of Section 34 of the Act of 1996, the intention of the legislature to exclude the applicability of Section 14 of the Limitation Act is not manifest. It is well to remember that Section 14 of the Limitation Act does not provide for a fresh period of limitation but only provides for the exclusion of a certain period. Having regard to the legislative intent, it will have to be held that the provisions of Section 14 of the Limitation Act, 1963 would be applicable to an application submitted under Section 34 of the Act of 1996 for setting aside an arbitral award.”
The position of law is well settled with respect to the applicability of Section14 of the Limitation Act to an application filed under Section 34 of the 1996 Act. By applying the facts of the present case to the well settled position of law, we need to assess whether the learned Single Judge of the High Court was justified in condoning the delay for filing an application under Section 34 of the 1996 Act.

11 The respondent submitted an application under Section 34 of the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondent’s application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 days.

12 The contention of Mr Aryama Sundaram, learned senior counsel for the appellant is that even if the benefit of Section 14 of the Limitation Act is extended to the respondent in filing the application under Section 34 of the 1996 Act, there would still be a delay of 131 days which could not be condoned in view of the specific statutory limitation prescribed under Section 34(3) of the 1996 Act. The learned senior counsel has tendered the following tabulated chart:

DELAY CHART

Particulars No. of Days No. of Days
A Award received on 31 October 2014
Application under Section 34 filed in the Calcutta High Court on 28 March 2016
Total no. of days 514
B Less: Period between the date of filing application under Section 34 in District Court, Port Blair on 30 January 2015 and date of dismissal of the application on 12 February 2016 [Applying Section 14 of the Limitation Act] 379
C Less: Period between the application for certified copy of the order dated 12 February 2016 filed on 29 February 2016 and receipt of certified copy of the order on 3 March 2016 [Applying Section 12 of the Limitation Act] 4
Total no. of days 383
D TOTAL DELAY 131

The appellant has, in this connection, relied on Union of India v Popular Construction Company (supra) and Consolidated Engineering Enterprises v Principal Secretary, Irrigation Department (supra) to support its case. On the other hand, it is the respondent’s contention that there were no willful latches on its part and the delay was caused due to inevitable administrative difficulties of obtaining directions from higher officials.

13 A plain reading of sub-section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words “but not thereafter” in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate.

14 The respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety days.

15 The respondent has relied on the decision of this Court in Union of India v Tecco Trichy Engineers & Contractors9 , where this Court had to decide the effective date from which the limitation within the meaning of subsection (3) of Section 34 of the Act shall be calculated. The Chief Project Manager on behalf of the Southern Railway had entered into a contract with a contractor for construction of a railway bridge. Disputes between the parties were referred to arbitration and an award was delivered in the office of the General Manager, Southern Railway. The Chief Engineer preferred an application against the award under Section 34 of the 1996 Act before the High Court. The learned Single Judge and the Division Bench of the High Court rejected the application holding it as barred by limitation. This Court reversed the order of the High Court and condoned the application for delay. This Court observed that in huge organisations like the Railways having different divisional heads and various departments within the division, the copy of the award had to be received by the person who had knowledge of the proceedings and who would be the best person to understand and appreciate the award and grounds for challenge. This Court found that all arbitral proceedings for the Railways were being represented by the Chief Engineer and the General Manager had simply referred the matter for arbitration as required under the contract. While condoning the delay of three months and 27 days, this Court found that the service of the arbitral award on the General Manager could not be taken to be sufficient notice to constitute the starting point of limitation for the purpose of Section 34(3) of the 1996 Act. The decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a timeconsuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act.

16 Under the circumstances, we are of the considered opinion that in view of the period of limitation prescribed in Section 34(3), the learned Single Judge of the High Court was not justified in condoning the respondent’s delay of 514 days in filing the application. The judgment rendered by the learned Single Judge of the High Court of Calcutta on 27 April 2016, in GA No. 958 of 2016 is set aside and the appeal is allowed. The petition under Section 34 stands dismissed on the ground that it is barred by limitation. There shall be no order as to costs.

……………………………………………..J
[Dr Dhananjaya Y Chandrachud]
……………………………………………..J
[Vineet Saran]

New Delhi;
December 05, 2018

FOOTNOTE:
1 The High Court delivered judgment on 27 April 2016.
2 The date of the agreement is 5 January 2006
3 O.A No.2/2015
4 AP No 91 of 2008
5 A.P. No. 224/2016
6 G.A. No. 958/2016 in A.P. No. 224/2016
7 (2001) 8 SCC 470 at para 12 and 14
8 (2008) 7 SCC 169 at para 23
9 (2005) 4 SCC 239

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]]> https://bnblegal.com/landmark/m-s-simplex-infrastructure-ltd-vs-union-of-india/feed/ 0 P. Radha Bai and Ors. Vs P. Ashok Kumar and Anr. https://bnblegal.com/landmark/p-radha-bai-and-ors-vs-p-ashok-kumar-and-anr/ https://bnblegal.com/landmark/p-radha-bai-and-ors-vs-p-ashok-kumar-and-anr/#respond Tue, 17 Dec 2019 11:51:33 +0000 https://www.bnblegal.com/?post_type=landmark&p=249161 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 7710­7713 OF 2013 P. RADHA BAI AND ORS. …APPELLANT(S) VERSUS P. ASHOK KUMAR AND ANR. …RESPONDENT(S) J U D G M E N T N.V. RAMANA, J. 1. These appeals are filed, aggrieved by the judgment and order dated 18.06.2012 in the Civil […]

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]]> IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 7710­7713 OF 2013
P. RADHA BAI AND ORS. …APPELLANT(S)
VERSUS
P. ASHOK KUMAR AND ANR. …RESPONDENT(S)
J U D G M E N T

N.V. RAMANA, J.
1. These appeals are filed, aggrieved by the judgment and order dated 18.06.2012 in the Civil Revision Petition Nos. 2151, 2246, 2383 and 2458 of 2012 passed by the High Court of Judicature at Andhra Pradesh at Hyderabad.

2. An interesting question of law arises in this batch of petitions, concerning the applicability of Section 17 of the Limitation Act, 1963 [‘Limitation Act’] for condonation of a delay caused on the account of alleged fraud played on the objector (party challenging the award) beyond the period Reportable prescribed under Section 34 (3) of the Arbitration and Conciliation Act of 1996 [‘Arbitration Act’].

3. The facts which give rise to this question fall into a narrow compass. Originally one Mr. P. Kishan Lal carried on business and acquired several properties. On his death, Mr. P. Kishan Lal was survived by eight (8) legal heirs (Appellant Nos. 1 to 6 and Respondent Nos. 1 and 2).

4. After the death of Mr. Kishan Lal, several disputes have cropped up on the division of properties. Having failed to resolve the dispute, the parties turned towards arbitration to resolve the dispute. Five Arbitrators were appointed to adjudicate and distribute eleven properties belonging to them.

5. On 18.02.2010, the arbitrators passed a unanimous Award providing for the division of properties and businesses. The parties received the Award on 21.02.2010. There is no dispute on the receipt of the Award by the parties.

6. The Respondents allege that after the pronouncement of the award, the Appellants in bad faith entered into a Memorandum of Understanding (MoU) with the Respondents. According to the Respondents, the Appellants agreed to give certain additional properties to Respondent No. 1, which were more than what were provided in the Award. The Respondents alleged that after entering into the MoU, the Appellants were required to execute Gift and Release Deeds to give effect to the MoU. However, the Appellants delayed the execution of the Gift and Release Deeds as contemplated by the MoU.

7. In the meanwhile, the three­month period and the extended period of 30 days for challenging an Award under Section 34(3) of the Arbitration Act had expired. After the time limit expired, the Appellants filed an Execution Petition (EP) for execution of the Award. The trial court held that EP was not maintainable. On appeal, the High Court set aside the order of the trial court and held that the Execution Petition was maintainable and directed the trial court to decide it on merits.

8. When the Respondents realized that the Appellants were delaying the execution of the Gift Deed contemplated by the MoU, the Respondents on 08.02.2011 filed an application under Section 34(3) of the Arbitration Act for setting aside the Award. This filing was 236 days after the receipt of the Award by the Respondents. The application was accompanied by another application under Section 5 of the Limitation Act seeking condonation of the delay of 236 days. In the application for condonation of delay, the Respondents alleged that:
a. Award was served on the Respondents on 21.02.2010; b. They were laypersons and were not aware of the legal requirement of filing objections within the period prescribed under the Arbitration Act.
c. Since they were dissatisfied with the Award, they raised objections before the learned Arbitrators. The Arbitrators called upon all the parties and conducted conciliation. Accordingly, the parties entered into a MoU. The MoU contemplated for execution of Gift Deed and Release Deed in favour of Respondent No.1. However, the Appellants failed to execute the required documents as per the MoU with an intent to defeat their rights.
d. One of the Respondents was physically indisposed for one month.

9. During the pendency of the aforesaid interim application, seeking condonation of the delay, the Respondents filed another application being I.A. No. 1977 of 2011 in I.A. No. 598 of 2011, seeking an order of the trial court to summon the Sub­registrar, Charminar to prove the veracity of the Memorandum of Understanding and to counter the allegations raised by the Appellants herein, as to the falsification and fabrication of the Memorandum dated 09.04.2010. For completeness of narration, it may be stated that additional I.A.s, being I.A. No. 210 and 211 of 2012, were sought by the Respondent seeking certain documents to be brought on record.

10. By order dated 21.02.2012, the trial court dismissed the IA. No. 598 of 2011, pertaining to the condonation of delay in filing the Section 34 application. The Trial Court while dismissing the aforesaid application as indicated above, reasoned as under5
i. That the Court is not empowered to stretch the limitation period beyond the requisite period given under Section 34 of the Arbitration Act.
ii. Placing reliance on Union of India vs. Popular Construction Co., (2001) 8 SCC 470 and Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department, (2008) 7 SCC 169, held that the language of Section 34 of the Arbitration Act mandated a strict adherence to the time period provided thereunder and the extension beyond the same was not possible under any circumstances. Therefore, Section 5 of the Limitation Act was not applicable to an application filed under Section 34 of the Arbitration Act.
iii. Based on the aforesaid judgments of this Hon’ble Court, and the provisions of Section 34 (3) of the Arbitration Act, the City Civil Court held that Section 5 of the Limitation Act, 1963, has no application, as the Court has no power to condone the delay beyond three months and thirty days. On this ground alone, the objections filed under Section 34 were liable to be dismissed.
iv. That the trial court rejected the contention that the Respondent (objector) was unable to file the objections within the period of limitation on the ground of illness and no medical certificate was provided to substantiate such claim.
v. That ignorance of law on behalf of the Respondents, to be not aware of the technicalities provided under Section 34 of the Arbitration Act was not excusable.
vi. Moreover, the trial court came to a conclusion that equitable grounds cannot be utilized to create exceptions not mandated under the statutory law.
We may note that the trial court although discussed about the existence of the Memorandum of Understanding dated 09.04.2010 and its impact on the Respondent’s delay in filing the Section 34 application, there is no specific discussion concerning the applicability of Section 17 of the Limitation Act in the trial court order. Moreover, other interim applications filed by the respondents were also dismissed consequentially.

11. Being aggrieved by the dismissal, respondents preferred four Civil Revision petitions, before the High Court of Andhra Pradesh under Article 227 of the Constitution of India, being C.R.P. No. 2151, 2246, 2383 and 2458 of 2012. By the impugned order dated 18.06.2012, the High Court remanded the matter to the trial court concerning the applicability of Section 17 of the Limitation Act in an application under Section 34 of the Arbitration Act. The High Court observed
“Even though Mr. K. Prabhakar, learned counsel for the respondents sought to argue that when Section 5 of the Act is excluded, automatically Section 17 of the Act also gets excluded, I refrain from expressing any opinion on this aspect, because this is required to be considered by the lower court at the first instance before this Court examines the same at an appropriate stage. On this short ground, I feel that it is just and appropriate to remand the matter back to the learned Chief Judge, City Civil Court, Hyderabad for considering the abovementioned pleadings of the petitioners and pronouncing upon the same with reference to the applicability or otherwise of the provision of Section 17 of the Act. Therefore, without expressing any opinion on these aspects, the learned Chief Judge is directed to reconsider the case only to this limited extent and pass a fresh order after hearing both parties, within a period of two months from the date of receipt of this order. It is made clear that the orders of the lower Court in respect of the other aspects stand confirmed”.
(emphasis supplied)

12. Aggrieved by the remand order passed by the High Court on the applicability of Section 17 of the Limitation Act to the proceedings, the Appellants have approached this Court in these appeals.

13. Before we delve into any other aspect of this case, it may be important to note that we would have agreed with the High Court wherein a remand may have been required in usual course for considering the applicability of Section 17 of the Limitation Act as there is an apparent insufficiency of reasons in the trial court order. But, in this case there has been a considerable delay in resolving the dispute. The very purpose of speedy justice delivery mechanism would be frustrated by such delays if the matter is allowed to linger before the courts. We had positively persuaded the parties several times to come to an amicable settlement and asked the advocates representing them to use their good offices to refer parties to mediation and avoid decades of litigation. But, our efforts were not met with much success in any event.

14. The High Court could have examined the legal issue of applicability of Section 17 of the Limitation Act to an application filed under Section 34 of the Arbitration Act. This is a pure question of law. Only if Section 17 of Limitation Act was applicable to a Section 34 application, the question of factual satisfaction of the ingredients of Section 17 to the present case and a consequent remand to the trial court would arise.

15. The learned counsel for the appellants, Mr. Devansh A. Mohta, argued thati. Limitation period provided under Section 34 (3) of the Arbitration Act begins ‘only’ upon the receipt of the award by the parties and the same cannot be diluted by a different starting point provided under the Limitation Act, in light of Section 29 (2) of the Limitation Act.
ii. The period of limitation under Section 34(3) of the Arbitration Act is ‘unbreakable’ and is meant to run continuously.
iii. Definitive time limit is necessary to ensure expeditious and effective resolution of disputes between the parties.
iv. The mandate of Popular Construction Case (supra) and Consolidated Engineering Case (supra) wherein the emphasis on ‘fixed period’ needs to be given effect to.
v. The expression ‘had received the arbitral award’ found in Section 34 (3) of the Arbitration Act expressly excludes applicability of Section 17 of the Limitation Act.
vi. This Court should appreciate the difference between concealment of right to action being different from preventing a person from taking action.

16. On the contrary, the learned counsel for the respondents, Mr. Yashraj Singh Deora, had contended thati. The reasoning provided under Popular Construction Case (supra) and Consolidated Engineering Case (supra) clearly indicates to the applicability of Section 17 of the Limitation Act, similar to the applicability of Section 14 of the Limitation Act. ii. Limitation Act is applicable to all proceedings before the court. iii. It is evident that the Arbitration Act under Section 34 (3) provides for a different time period than the one present under Article 137 of the Limitation Act, accordingly, the special law would therefore, prevail in so far as the issue of period of limitation is concerned. However, for ‘computation of the period of limitation’ or arriving at the ‘prescribed period’ the provisions of Section 4 to 24 of the Limitation Act would automatically apply unless they are expressly excluded by the special law. iv. That it has been highly inequitable for the respondents, who were victims of bad faith negotiation undertaken by the Appellants to derail the respondents from pursuing this case for enforcement of their rights.

17. We have heard the counsels for both the parties at length, and also perused the material available on record.

18. We are now to examine whether Section 17 of the Limitation Act is applicable while determining the limitation period under Section 34(3) of the Arbitration Act?

19. This analysis has to necessarily begin from Section 29(2) of the Limitation Act, which states 29 (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (emphasis added)

20. Section 29(2) is divided into 2 limbs. This is evident from the conjunctive “and” in the said provision. The inter­relation between these two limbs was considered by a Bench of five Judges of this Court in Vidyacharan Shukla v. Khubchand Baghel, [1964] 6 SCR 129.

21. The first part stipulates that the limitation period prescribed by the special law or local law will prevail over the limitation period prescribed in the Schedule to the Limitation Act. In this case, the Arbitration Act is a “special law” which prescribes a specific period of limitation in Section 34(3) for filing objections to an arbitral award passed under the 1996 Act and consequently the provisions of Arbitration Act would apply. We also note that there is no provision under the Limitation Act dealing with challenging an Award passed under the Arbitration Act.

22. The second part mandates that Sections 4 to 24 of the Limitation Act will apply for determining the period of limitation “only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” Thus the extent of the application of Sections 4 to 24 of Limitation Act will apply for determining the limitation period under the Arbitration Act only if they are not expressly excluded by Arbitration Act.

23. We are conscious that this Court in several pronouncements has extended Section 14 of Limitation Act to Section 34 of Arbitration Act and thereby excluded the time spent in bonafide pursuing proceedings in a Court which lacks jurisdiction. (State of Goa v. Western Builders (2006) 6 SCC 239 at para 25; Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, (2008) 7 SCC 169 at para 27 and 29; Coal India Ltd. v. Ujjal Transport Agency, (2011) 1 SCC 117 at para 6; M.P. Housing Board v. Mohanlal & Co., (2016) 14 SCC 199 at para 13). Similarly, this Court also extended Section 12 of the Limitation Act to the Arbitration Act and excluded the day on which the Award was received from computing the starting period under Section 34(3). We note that none of these cases dealt with the question whether the scheme of Section 17 of the Limitation Act is consistent with Section 34 of the Arbitration Act.

24. Relying on these pronouncements, the Respondents’ counsel asserted that there is no express exclusion of Section 17 in the Arbitration Act and therefore the benefit of Section 17 of Limitation Act should be extended while determining the period of limitation under Section 34(3).

25. This requires us to consider the phrase “express exclusion” in Section 29(2) of the Limitation Act. This Court in a series of cases held that the express exclusion can be inferred either from the language of the special law or it can be necessarily implied from the scheme and object of the special law.

26. A Bench of five Judges in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099, interpreting the phrase “express exclusion” observed: “The contention is that sub­section (3) of Section 116­A of the Act not only provides a period of limitation for such an appeal, but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers to this argument. Firstly, Section 29(2)(a) of the Limitation Act speaks of express exclusion but there is no express exclusion in sub­section (3) of Section 116­A of the Act; secondly, the proviso from which an implied exclusion is sought to be drawn does not lead to any such necessary implication”.

27. This principle was further crystallised in Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133 wherein a Bench of three Judges held that: “It is contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special taw does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject­matter and scheme of the special law exclude their operation”. (emphasis added)

28. A Bench of three Judges in Commissioner of Customs and Central Excise v. Hongo India (P) Ltd., (2009) 5 SCC 791 reiterated this principle when it held:
“It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject­matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court”.

29. These principles were reiterated by this Court in Union of India v. Popular Construction Co., (2001) 8 SCC 470 at page 474; Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission, (2010) 5 SCC 23 at para 32; Gopal Sardar v. Karuna Sardar, (2004) 4 SCC 252 at para 13.

30. Thus, the inquiry is ­ whether the text or the scheme and object of the Arbitration Act excludes the application of Section 17 of Limitation Act while determining the limitation period?

31. We therefore have to contrast Section 17 of the Limitation Act with Section 34(3) of the Arbitration Act. The relevant part of Section 17 states
17. Effect of fraud or mistake.—
(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

32. Section 17 does not extend or break the limitation period. It only postpones or defers the commencement of the limitation period. This is evident from the phrase “the period of limitation shall not begin to run”.
33. In contrast, Section 34(3) of the Arbitration Act states
34. Application for setting aside arbitral award­
…
…
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal.
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (emphasis added)

34. Section 34(3) deserves careful scrutiny and its characteristics must be highlighted:
(a) Section 34 is the only remedy for challenging an award passed under Part I of the Arbitration Act. Section 34(3) is a limitation provision, which is an inbuilt into the remedy provision. One does not have to look at the Limitation Act or any other provision for identifying the limitation period for challenging an Award passed under Part I of the Arbitration Act.
(b) The time limit for commencement of limitation period is also provided in Section 34(3) i.e. the time from which a party making an application “had received the Arbitral Award” or disposal of a request under Section 33 for corrections and interpretation of the Award.
(c) Section 34(3) prohibits the filing of an application for setting aside of an Award after three months have elapsed from the date of receipt of Award or disposal of a request under Section 33. Section 34(3) uses the phrase “an application for setting aside may not be made after three months have elapsed”. The phrase “may not be made” is from the UNCITRAL Model Law1 and has been understood to mean “cannot be made”. The High Court of Singapore in ABC Co. Ltd v. XYZ Co. Ltd, [2003] SGHC 107)
“The starting point of this discussion must be the Model Law itself. On the aspect of time, Article 34(3) is brief. All it says is that the application may not be made after the lapse of three months from a specified date. Although the words used are ‘may not’ these must be interpreted as ‘cannot’ as it is clear that the intention is to limit the time during which an award may be challenged. This interpretation is supported by material relating to the discussions amongst the drafters of the Model Law. It appears to me that the court would not be able to entertain any application lodged after the expiry of the three months period as Article 34 has been drafted as the allencompassing, and only, basis for challenging an award in court. It does not provide for any extension of the time period and, as the court derives its jurisdiction to hear the application from the Article alone, the absence of such a provision means the court has not been conferred with the power to extend time”.
(d) The limitation provision in Section 34(3) also provides for condonation of delay. Unlike Section 5 of Limitation Act, the delay can only be condoned for 30 days on showing sufficient cause. The crucial phrase “but not thereafter” reveals the legislative intent to fix an outer boundary period for challenging an Award.
(e) Once the time limit or extended time limit for challenging the arbitral award expires, the period for enforcing the award under Section 36 of the Arbitration Act commences. This is evident from the phrase “where the time for making an application to set aside the arbitral award under Section 34 has expired”.2 There is an integral nexus between the period prescribed under Section 34(3) to challenge the Award and the commencement of the enforcement period under Section 36 to execute the Award.

35. If Section 17 of the Limitation Act were to be applied to determining the limitation period under Section 34(3), it would have the following consequences (a) In Section 34(3), the commencement period for computing limitation is the date of receipt of award or the date of disposal of request under Section 33 (i.e correction/additional award).
If Section 17 were to be applied for computing the limitation period under Section 34(3), the starting period of limitation would be the date of discovery of the alleged fraud or mistake. The starting point for limitation under Section 34(3) would be different from the Limitation Act.
(b) The proviso to Section 34(3) enables a Court to entertain an application to challenge an Award after the three months period is expired, but only within an additional period of thirty dates, “but not thereafter”. The use of the phrase “but not thereafter” shows that the 120 days period is the outer boundary for challenging an Award. If Section 17 were to be applied, the outer boundary for challenging an Award could go beyond 120 days. The phrase “but not thereafter” would be rendered redundant and otiose. This Court has consistently taken this view that the words “but not thereafter” in the proviso of Section 34 (3) of the Arbitration Act are of a mandatory nature, and couched in negative terms, which leaves no room for doubt. (State of Himachal Pradesh v. Himachal Techno Engineers & Anr., (2010) 12 SCC 210, Assam Urban Water Supply & Sewerage Board v. Subash Projects & Marketing Ltd., (2012) 2 SCC 624 and Anilkumar Jinabhai Patel (D) through LRs v. Pravinchandra Jinabhai Patel & Ors., (2018) SCC Online SC 276

36. In our view, the aforesaid inconsistencies with the language of Section 34(3) of Arbitration Act tantamount to an “express exclusion” of Section 17 of Limitation Act.

37. This Court in Popular Construction Case (supra) at page 474 followed the same approach when it relied on the phrase “but not thereafter” to hold that Section 5 of Limitation Act was expressly excluded.
12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to sub­section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result.
(emphasis added)

38. Further, the exclusion of Section 17 is also necessarily implied when one looks at the scheme and object of the Arbitration Act.

39. First, the purpose of Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an Award. This Court in Popular Construction Case (supra) highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time limit for challenging an Award is necessary for ensuring finality. If Section 17 were to be applied, an Award can be challenged even after 120 days. This would defeat the Arbitration Act’s objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an Award even after the 120 day period.

40. Second, extending Section 17 of Limitation Act to Section 34 would do violence to the scheme of the Arbitration Act. As discussed above, Section 36 enables a party to apply for enforcement of Award when the period for challenging an Award under S.34 has expired. However, if Section 17 were to be extended to Section 34, the determination of “time for making an application to set aside the arbitral award” in Section 36 will become uncertain and create confusion in the enforcement of Award. This runs counter to the scheme and object of the Arbitration Act.

41. Third, Section 34(3) reflects the principle of unbreakability. Dr. Peter Binder in International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 2nd Ed., observed: “An application for setting aside an award can only be made during the three months following the date on which the party making the application has received the award. Only if a party has made a request for correction or interpretation of the award under Art. 33 does the time limit of three months begin after the tribunal has disposed of the request. This exception from the three­month time limit was subject to criticism in the Working group due to fears that it could be used as a delaying tactics. However, although “an unbreakable time limit for applications for setting aside” was sought as being desirable for the sake of “certainty and expediency” the prevailing view was that the words ought to be retained “since they presented the reasonable consequence of article 33”. According to this “unbreakability” of time limit and true to the “certainty and expediency” of the arbitral awards, any grounds for setting aside the award that emerge after the three­month time limit has expired cannot be raised.

42. Extending Section 17 of the Limitation Act would go contrary to the principle of ‘unbreakability’ enshrined under Section 34(3) of the Arbitration Act.

43. The Respondents have argued that if Section 17 is not extended to Section 34, it would cause enormous injustice and provide scope for parties to play mischief. The Respondents have cited several illustrations where on account of fraud of the party, an objecting party can be precluded from challenging an Award and extending Section 17 would come to the rescue of such a party.

44. The Respondent’s contention proceeds on a misconceived notion of Section 17. Even if Section 17 were to be extended to Section 34, it would not address the Respondent’s grievance. Section 17 does not defer the starting point of the limitation period merely because the Appellants has committed fraud. Section 17 does not encompass all kinds of frauds and mistakes. Section 17(1)(b) and (d) only encompasses only those fraudulent conduct or act of concealment of documents which have the effect of suppressing the knowledge entitling a party to pursue its legal remedy. Once a party becomes aware of the antecedent facts necessary to pursue a legal proceeding, the limitation period commences.

45. This principle is illustrated by a ruling of this Court in Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari, 1950 SCR 852. The facts of this case are broadly similar. A decree holder files an execution petition after the expiry of limitation period (12 years of the passing of decree). To overcome the limitation bar, the decree­holder alleged that the judgement debtor prevented the execution of a decree by suppressing the ownership of certain assets (ownership of newspaper in those facts) and in support placed reliance on Section 18 of Limitation Act, 1908 (equivalent of Section 17)3 Rejecting this contention, this Court observed:
19. In our opinion, the facts necessary to establish fraud under Section 18 of the Limitation Act are neither admitted nor proved in the present case. Concealing from a person the knowledge of his right to apply for execution of a decree is undoubtedly different from preventing him from exercising his right, of which he has knowledge. Section 18 of the Limitation Act postulates the former alternative. …… The fraud pleaded, namely suppression of ownership of the Prabhat newspaper, did not conceal from him his right to make an application for execution of the decree.

46. Similarly in Pallav Sheth v. Custodian, (2001) 7 SCC 549, this Court observed that Section 17 comes to the rescue of a party for “failing to adopt legal proceedings when the facts or material necessary for him to do so have been willfully concealed from him”

47. In the context of Section 34, a party can challenge an award as soon as it receives the award. Once an award is received, a party has knowledge of the award and the limitation period commences. The objecting party is therefore precluded from invoking Section 17(1)(b) & (d) once it has knowledge of the Award. Section 17(1)(a) and (c) of Limitation Act may not even apply, if they are extended to Section 34, since they deal with a scenario where the application is “based upon” the fraud of the respondent or if the application is for “relief from the consequences of a mistake”. Section 34 application is based on the award and not on the fraud of the respondent and does not seek the relief of consequence of a mistake.

48. The fraudulent conduct where Section 17 of the Limitation Act would have helped the objecting party is where there was a fraud in the delivery of the award. However, in such a scenario, resort to section 17 is not necessary. If there is any fraud in the delivery of Award, the requirement of receipt of Award under Section 34(3) itself is not satisfied. Any receipt of Award must be effective receipt. This Court in Union of India v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239 held that:
“8. The delivery of an arbitral award under sub­section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be “received” by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings.
9. In the context of a huge organisation like the Railways, the copy of the award has to be received by the person who has knowledge of the proceedings and who would be the best person to understand and appreciate the arbitral award and also to take a decision in the matter of moving an application under sub­section (1) or (5) of Section 33 or under sub­section (1) of Section 34”.

49. In view of the above, we hold that once the party has received the Award, the limitation period under Section 34(3) of the Arbitration Act commences. Section 17 of the Limitation Act would not come to the rescue of such objecting party.

50. In the present case, the Respondents had a right to challenge the Award under Section 34 the moment they received it. In this case, Respondents received the Award on 21.02.2010. The alleged MoU was executed on 09.04.2010. Once the Respondents received the Award, the time under Section 34(3) commenced and any subsequent disability even as per Section 17 or Section 9 of Limitation Act is immaterial. Merely because the Appellant had committed some fraud, it would not affect the Respondents right to challenge the Award if the facts entitling the filing of a Section 34 Application was within their knowledge. The moment the Respondents have received the Award, the three months period prescribed under Section 34(3) begins to commence. It was incumbent on the Respondents to have instituted an application under Section 34 challenging an award. Therefore, in light of the discussion above, there would not have been any point for meaningful remand as the question of law is answered against the Respondents herein.

51. In light of the aforesaid legal position, the judgment and order of the High court dated 18.06.2012, in Civil Revision Petition Nos. 2151, 2246, 2383 and 2458 of 2012 are setaside, and also the order allowing I.A. No. 598 of 2011 condoning the delay of 236 days in filing the objections is set aside, accordingly these appeals are allowed with no order as to costs.

………………………J.
(N. V. Ramana)
………………………J.
(S. Abdul Nazeer)

New Delhi,
September 26, 2018

FOOTNOTE
1. “ An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal”.

2. 36. Enforcement.—Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.

3. Although there is a slight difference in the text of S.18 of Limitation Act, 1908 and S.17 of Limitation Act, 1963, the relevant provision for the present case remains the same.

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]]> https://bnblegal.com/landmark/p-radha-bai-and-ors-vs-p-ashok-kumar-and-anr/feed/ 0 Anilkumar Jinabhai Patel (D) Thr. Lrs. Vs Pravinchandra Jinabhai Patel and Ors. https://bnblegal.com/landmark/anilkumar-jinabhai-patel-d-thr-lrs-vs-pravinchandra-jinabhai-patel-and-ors/ https://bnblegal.com/landmark/anilkumar-jinabhai-patel-d-thr-lrs-vs-pravinchandra-jinabhai-patel-and-ors/#respond Tue, 17 Dec 2019 11:49:06 +0000 https://www.bnblegal.com/?post_type=landmark&p=249159 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3313 OF 2018 (Arising out of SLP(C) No.15668 of 2012) ANILKUMAR JINABHAI PATEL (D) THR. LRs. …Appellants Versus PRAVINCHANDRA JINABHAI PATEL AND ORS. …Respondents WITH CIVIL APPEAL NO. 3314 OF 2018 (Arising out of SLP(C) No.15741 of 2012) J U D G […]

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]]> REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3313 OF 2018
(Arising out of SLP(C) No.15668 of 2012)
ANILKUMAR JINABHAI PATEL (D) THR. LRs. …Appellants
Versus
PRAVINCHANDRA JINABHAI PATEL AND ORS. …Respondents
WITH
CIVIL APPEAL NO. 3314 OF 2018
(Arising out of SLP(C) No.15741 of 2012)
J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. Appellants have filed these appeals challenging the judgment dated 27.03.2012 of the High Court of Judicature at Bombay Bench at Aurangabad in W.P. No. 4669 of 2011 in and by which the High Court held that challenge to the arbitral award dated 07.07.1996 was time barred under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996 (for short “the Act”).

3. The facts of the case are that the appellant No.1/Anilkumar Patel and respondent No.1/Pravinchandra Patel are real brothers and sons of Jinabhai.
Pravinchandra Patel and Anilkumar Patel together started the business of fertilizer manufacturing, chemical and real estate at Jalgaon. In the course of business, they set up number of companies and partnership concerns and acquired numerous immovable and movable properties. Pravinchandra Patel has three daughters, who are married and settled outside Jalgaon. Anilkumar Patel has three sons, who are residing with him at Jalgaon. As children of Pravinchandra Patel and Anilkumar Patel grew up and in order to avoid any possible litigation, both the brothers and their family members decided to make division of the assets of the family. For this purpose, they approached Latikaben (respondent No.12) and Bhikhalal Nathalal Patel (respondent No.11) who is the sister and brother-in-law of Pravinchandra Patel and Anilkumar Patel and parties have agreed to appoint them as arbitrators. It culminated into an MOU dated 21.05.1996 appointing Latikaben and Bhikhalal Nathalal Patel as arbitrators which was signed by all the members of the family that is the appellants and respondents.

4. While arbitrators were away to Rajkot due to emergency work, both Pravinchandra Patel and Anilkumar Patel decided to streamline the ongoing business of firms and companies by signing of an interim MOU on 29.06.1996 (IMOU). The covenants of the said IMOU covered the matters relating to bank accounts and withdrawal power, NPK allocation etc. The said IMOU was signed by Pravinchandra Patel for himself and on behalf of his family members. Similarly, Anilkumar Patel signed in the IMOU for himself and also as a power of attorney holder for his wife, his all sons and daughter-in-law.

5. The arbitrators arrived at Jalgaon on 04.07.1996 and continued with the arbitration proceeding and passed the award on 07.07.1996 (with a mention of IMOU dated 29.06.1996) under which certain properties were given to Pravinchandra Patel and Anilkumar Patel whereas some other assets were kept undivided with equal rights and interest thereon of both groups. The award was written in Gujarati language by hand by the arbitrators and signed by the arbitrators. The copy of the award was given to Pravinchandra Patel and Anilkumar Patel by arbitrators in person which was duly acknowledged by them. Copy of the award bears signature of both Pravinchandra Patel and Anilkumar Patel with recital that they and their family members will act as per the award and will give effect to the same. Then by an award dated 03.11.1996, the issues between appellants and respondents were finally decided taking note of earlier awards. According to Pravinchandra Patel, Anilkumar Patel accepted and acted upon the awards on more than one occasion.

6. However, Anilkumar Patel and his family members (appellant Nos. 1(a) to 1(d) and respondent No.10) filed an arbitration petition No.202 of 2005 under Section 34 of the Act before the District Judge, Jalgaon on 29.11.2005 challenging the award dated 07.07.1996 contending that they learnt about the arbitral award only on 11.08.2005 when they were served with the notice of execution petition filed by Pravinchandra Patel alongwith the xerox of the award dated 07.07.1996. Therefore, as per the appellant-Anilkumar Patel, period of limitation starts only from 11.08.2005, from the date of their receipt of copy of the award. It was further alleged that, appellant Nos. 1(a) to 1(d) and respondent No.10 were not included as party in the award dated 07.07.1996 and the award is not binding on them. They have, inter alia, alleged that the award is a false and fraudulent document. They also emphasized that the signature of Anilkumar Patel in the arbitral award showing his acknowledgement was forged and therefore, could not be acted upon.

7. Later on, an application came to be filed by Anilkumar Patel for himself and on behalf of his family members for an amendment under Order VI Rule 17 C.P.C. stating that the arbitration petition No.202 of 2005 filed initially, did not contain the challenge to award dated 03.11.1996 and hence, by an amendment sought to challenge award dated 03.11.1996 as well. The said application was dismissed on 30.06.2006 by the District Court on the ground of limitation which was further challenged through W.P. No.5502 of 2006 before the High Court. The same was remanded to the District Judge on 21.08.2006 for consideration of the matter afresh. After remand, the District Judge by order dated 28.09.2006 again dismissed the amendment application on the ground of limitation. The said order dated 28.09.2006 was again challenged by Anilkumar Patel under W.P. No.7614 of 2006. The High Court vide order dated 13.11.2006 dismissed the writ petition observing that Anilkumar Patel is adopting tactics of approbate and reprobate and Anilkumar Patel is acting as per his convenience by denying the knowledge of award dated 03.11.1996 in some court proceedings though in some other proceedings, he has relied on the said award and sought to take advantage on the basis of the said award.

8. Insofar as the challenge to the award dated 07.07.1996, the District Judge vide order dated 14.02.2011 allowed the application under Section 34 of the Act inter alia, holding that the period of limitation prescribed under Section 34(3) of the Act is to be computed from the point of time when the party concerned received the copy of the arbitral award. The District Judge set aside the award holding that number of serious issues have been raised in application under Section 34 and there is nothing to show that Anilkumar Patel was authorised by the other applicants to receive a copy of the award on their behalf and it cannot be said that the appellant Nos.1(a) to 1(d) and respondent No.10 had received the award in terms of Section 31(5) of the Act.

9. Being aggrieved, Pravinchandra Patel filed W.P. No.4669 of 2011. The High Court by the impugned judgment dated 27.03.2012 set aside the order of the District Judge holding that the petition filed in the year 2005 under Section 34 of the Act was time barred. The High Court held that sofaras the award dated 03.11.1996, the findings in W.P.No.7614 of 2006 have attained finality which has foreclosed the right of Anilkumar Patel to challenge the award dated 07.07.1996. The High Court enumerated various circumstances to hold that Anilkumar Patel and his family members were well aware of the award dated 07.07.1996. The High Court also relied upon various correspondence between the parties, legal proceedings etc. (O.A. No.298A/2001 etc.) to arrive at the conclusion that Anilkumar Patel received the award dated 07.07.1996. On those findings, the High Court held that the petition filed in the year 2005 under Section 34 of the Act is time barred and the petition filed under Section 34 of the Act challenging the award dated 07.07.1996 came to be dismissed.

10. On behalf of legal heirs of Anilkumar Patel, it was contended that as contemplated under Section 31(5) of the Act, copy of the award dated 07.07.1996 was not served upon the family members of Anilkumar Patel and mere knowledge as to the existence of the award would not in any manner result in the commencement of period of limitation. The learned senior counsel for the appellants contended that the limitation period can be computed only from the day on which the original signed copy of the arbitral award is received under the provision of Section 31(5) of the Arbitration and Conciliation Act, 1996.

11. Per contra, learned senior counsel for the respondents has drawn our attention to number of documents to refute appellant’s contention wherein appellant-Anilkumar Patel himself admitted many times that the arbitral award was within his knowledge and used the awards dated 07.07.1996 and 03.11.1996 on number of occasions including legal proceedings. Further contention of Pravinchandra Patel is that arbitrators who were none other than their sister Latikaben (respondent No.12) and Bhikhalal Nathalal Patel (respondent No.11) husband of Latikaben who came from Rajkot to Jalgaon to settle the matter amicably between two brothers which was at the instance of both the parties and while so, the award cannot be assailed as fabricated or a biased one.

12. On the aforesaid rival contentions advanced on behalf of both the parties and upon perusal of the impugned judgment and materials placed on record, the following points arise for consideration:-
(1) Whether Anilkumar Patel represented his family in the arbitration proceedings and whether respondents are right in contending that receipt of copy of award by Anilkumar Patel was for himself and on behalf of his family members?
(2) Whether the High Court was right in holding that the application under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award was barred by limitation?

13. Section 34 of the Act provides for filing of an application for setting aside an arbitral award. Sub-section (3) of Section 34 of the Act lays down the period of limitation for making the application. Section 34(3) of the Arbitration and Conciliation Act, 1996, reads as follows:-
34. Application for setting aside arbitral award.-(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with subsection (2) and sub-section (3).
(2) ………
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

14. Section 34(3) provides that an application for setting aside an award shall not be entertained by the court if it is made after three months have elapsed from the date on which the applicant had received the arbitral award. The proviso to Section 34 further provides that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the prescribed time, it may entertain the application within a further period of thirty days ‘but not thereafter’. (vide State of Arunachal Pradesh v. Damini Construction Co. (2007) 10 SCC 742). The words ‘but not thereafter’ in the proviso are of mandatory nature, and couched in the negative, and leave no room for doubt. Proviso to Section 34 gives discretion to the court to condone the delay for a sufficient cause, but that discretion cannot be extended beyond the period of thirty days, which is made exclusively clear by use of the words ‘but not thereafter’.

15. In Union of India v. Tecco Trichy Engineers and Contractors (2005) 4 SCC 239, a three Judge Bench of this Court, in respect to the issue of limitation for filing application under Section 34 of the Act for setting aside the arbitral award, held that the period of limitation would commence only after a valid delivery of an arbitral award takes place under Section 31(5) of the Act. In para (8), this Court held as under:-
“8. The delivery of an arbitral award under sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be “received” by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings.”

16. In State of Maharashtra and Ors. v. Ark Builders Pvt. Ltd., (2011) 4 SCC 616, while following the judgment in Tecco Trichy Engineers case, held that the expression “…party making that application had received the arbitral award…” cannot be read in isolation and it must be understood that Section 31(5) of the Act requires a signed copy of the award to be delivered to each party. By cumulative reading of Section 34(3) and Section 31(5) of the Act, it is clear that the limitation period prescribed under Section 34(3) of the Act would commence only from the date of signed copy of the award delivered to the party making the application for setting it aside.

17. Contention of the appellants is that the other members of Anilkumar’s family viz., appellant Nos. 1(a) to 1(d) and respondent No.10, appellant No.1(d) and respondent No.10 did not receive the copy of the award and that they had knowledge of the award only when the execution petition was filed and when they received the notice in the execution petition. Contention of appellant Nos. 1(a) to 1(d) and respondent No.10 is that in terms of Section 31(5) of the Act, copy of the award to be delivered to each party to enable them to challenge the award and since the copy of the award not individually served to them, the period of limitation would start only from the date when they got the copy of the award.

18 As pointed out earlier, Anilkumar Patel has signed the award and received the copy of the award with the following endorsement:- “For myself and on behalf of my family members”. Whether the receipt of the award by Anilkumar Patel with the above endorsement could be construed as the receipt of the award by his family members- appellant Nos.1(a) to 1(d) and respondent No.10, is the point falling for consideration.

19. In MOU dated 21.05.1996, Pravinchandra Patel and Anilkumar Patel have appointed their sister Latikaben and her husband Bhikhalal Nathalal Patel for effecting partition between the two families and both the families have consented for the same. The MOU was signed by Pravinchandra Patel and his wife and daughters (respondents No.1 to 5) and Anilkumar Patel and his wife and his three sons and one daughter-in-law (appellant No.1 (dead) and appellant Nos. 1(a) to 1(d) and respondent No.10). The MOU appointing arbitrators (21.05.1996) stipulates that: (i) the award to be in writing; and (ii) to furnish copy of the award to each of the members of the families. The relevant portion of MOU reads as under:-
“…..The arbitrators shall write down the particulars of the partition as well as the terms and conditions for effecting the partition and the arbitrators shall sign it. The arbitrators shall make as many copies of it as there are members and shall give each member a copy of it. And after that both the families shall act as per the particulars of partition given by the arbitrators and get the properties and business properties partitioned….”

20. As pointed out earlier, while arbitrators were away to Rajkot due to emergency work, both Pravinchandra Patel and Anilkumar Patel decided to streamline the ongoing business of firms and companies by signing an interim MOU on 29.06.1996 (IMOU). The covenants of the said IMOU covered the matters relating to bank account and withdrawal of power, NPK allocation etc. The said IMOU was signed by Pravinchandra Patel with the following endorsement:-
“P.J. Patel (Group No.1) for self and also as Power of Attorney Holder for wife and all daughters”.
Similarly in the said IMOU, Anilkumar Patel signed for himself and on behalf of his family members, as seen from the following endorsement:-
“A.J. Patel (Group No.2) for Self and also as Power of Attorney Holder for wife, all sons and daughter-in-law.”

21. The award dated 07.07.1996 was signed by both the arbitrators. The award was also signed by Pravinchandra Patel and Anilkumar Patel. Both of them have undertaken to implement the award with their free will and pleasure, as seen from the following:-
“As per this Arbitration “Award”, both the groups and their family members have to honestly, wholeheartedly and faithfully act in accordance with and implement the transaction of the property, the IMOU which is now considered as MOU and the accounting chart in respect of the companies and the firms.
The aforesaid Arbitration Award I agreed to and approved of by and our descendant guardian and heirs. We undertake to implement the same with free-will and pleasure.”
After their signature in the award which is in Gujarati language for having received the copy of the award, Pravinchandra Patel and Anilkumar Patel have stated as under:-
“….For ourselves and on behalf of our family members.”
It is pertinent to note that the award also referred to IMOU dated 29.06.1996 in and by which the members of the respective families have authorized Pravinchandra Patel and Anilkumar Patel to act on behalf of their family members.

22. The award dated 03.11.1996 also refers to the award dated 07.07.1996. The award dated 03.11.1996 was also signed by Pravinchandra Patel and Anilkumar Patel and both of them have undertaken that the arbitration award is duly agreed and approved by them and their family members and further undertaken to act in accordance with the award and to give effect to the same. The said endorsement in the award dated 03.11.1996 reads as under:-
“The aforesaid arbitration award is duly agreed to and approved of by me and my family members, descendants heirs and other. My family members and I absolutely assure to act in accordance with the award and to give effect to same.”
As discussed earlier, Anilkumar Patel was unsuccessful in his attempt to challenge the award dated 03.11.1996 which has attained finality in terms of the findings in W.P.No.7614 of 2006. Anilkumar Patel’s undertaking in the award dated 03.11.1996 that he and his family members agreed and approved the award shows that Anilkumar Patel was acting for himself and on behalf of his family members.

23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and daughter-in-law. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of 2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot plead non-compliance of Section 31(5) of the Act.

24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated 07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. “Inter Office Memo”dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom the sale-deed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996.

25. Central Bank of India has filed recovery proceeding in O.A.No.298-A/2001 against Pravinchandra Patel, M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited and others. In the said proceeding before DRT, Anilkumar Patel has referred to the arbitration award passed in July, 1996 and that he has no interest in M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited. Based on such stand taken by Anilkumar Patel in O.A.No.298-A/2001, DRT observed that Anilkumar Patel had resigned from the Directorship of the said company and exonerated him from the liability to the bank and dismissed O.A.No.298-A/2001 against Anilkumar Patel and Atulkumar Maganlal Patel. The High Court referred to the said DRT proceedings and various other circumstances in which Anilkumar Patel had taken advantage of arbitration award and the High Court held as under:- “….The respondents, obviously, wherever it was possible for them, at several places, took advantage of the arbitration award and now since obligation on their part is to be complied in favour of the petitioner, have started challenging the award, after nine years…..”Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court.

26. As rightly observed by the High Court, Anil kumar Patel has gone to the extent of even disputing his signature in the award dated 07.07.1996 by drafting choreographed petition. Having accepted the award through Anil kumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that “….Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms of compliance of Section 31(5) of the Act and Section 34(3) thereof…..”and that the application filed under Section 34 of the Act by Anil kumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment.

27. In the result, the appeals are dismissed. No costs.

…….……………………J.
[R.K. AGRAWAL]
…………….……………J.
[R. BANUMATHI]

New Delhi;
March 27, 2018

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