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no adultery against the women =So far as the appellant is concerned, she is charged under Sections 341 and 497 of the Penal Code. Section 497 deals with the offence of adultery and provides as follows: “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.”

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2232 OF 2011

(ARISING OUT OF SLP (CRIMINAL) NO.648 OF 2010)

W.KALYANI ….APPELLANT
VERSUS
STATE TR.INSPECTOR OF POLICE & ANR. …RESPONDENTS
WITH
SPECIAL LEAVE PETITION (CRIMINAL) NO.3856 OF 2010
AND
SPECIAL LEAVE PETITION (CRIMINAL) NO.2450 OF 2010

J U D G M E N T
Aftab Alam, J.

1. Delay condoned in special leave petition (criminal)

No.3856 of 2010.

2. The Andhra Pradesh High Court by its judgment and

order dated November 2, 2009 quashed the proceedings

arising from a criminal complaint in respect of accused

nos. 5, 6 and 9 but declined to interfere in favour of
2
accused No.8 in the complaint. These three Special

Leave Petitions arise from the same judgment. SLP

(Crl.) Nos.2450/2010 and 3856/2010 are filed by the

complainant who is aggrieved by the order insofar as it

quashed the proceedings against accused Nos. 5, 6 and 9

and SLP (Crl.) No.648 of 2010 is filed by accused no. 8

whose petition for quashing was dismissed by the High

Court.

3. On hearing counsel for the parties and on going

through the materials on record, we find no merit in

SLP (Crl.) Nos.2450 of 2010 and 3856 of 2010. These two

special leave petitions are dismissed.

4. Leave granted in SLP (Crl.) No.648 of 2010 filed by

accused No.8 in the complaint.

5. Gummadi Sailaja filed a complaint against nine

accused under Sections 498-A, 386, 341 read with

Section 34 of the Indian Penal Code. Accused no. 1 is

her husband and accused no.2, her mother-in-law.

Accused No.3 is the younger brother of her husband and
3
accused No.9 is his wife. Accused No.4 is the maternal

uncle of the husband of the complainant. Accused No.6

and accused No.5 are husband and wife and they along

with accused No.7 are said to be close friends of the

complainant’s husband who actively participated in her

marriage with her husband. Accused No.8, the appellant,

is described in the complainant as the girl friend of

the complainant’s husband with whom he had illicit

sexual relations.

6. It is stated in the complaint that the complainant

came in contact with accused No.1 through a matrimonial

site on the internet. At that time accused No.1 was a

software engineer working in the US and she had herself

done M. Phil. They agreed to marry and accused No.1

promised that he would not ask for any dowry. However,

when his mother, accused No.2, came to know of the

proposal she demanded a sum of Rs.10,00,000/- (Rupees

Ten Lacs only)and 50 sovereigns of jewellery as dowry.

The complainant and her people did not wish to miss her

match with accused No.1 and she also believed that
4
accused No.1 was not aware of the demand made by his

mother. She, therefore, agreed to meet the demand of

accused No.2 and their marriage took place in the night

of February 3-4, 2007. After marriage they stayed

together in his house at Visakhapatnam. After a few

days she was taken to Tirupati for `darasanam’ of Lord

Venkateswara. Accused No.8 also accompanied them and it

is further alleged that her husband and accused No.8

moved together very freely as if they were spouses. The

specific allegations against accused No.8 in the words

of the complainant are as follows:

“Along with them one Kalyani also followed to

Tirupathi with whom the A1 moved very freely as

if she were his wife. Kalyani said to be the

girl friend of A1, moved with A1 very freely as

if they were wife and husband and used to sleep

in one cot keeping the complainant outside the

room.”
The complaint goes on that her husband, accused No.1,

took her to Florida, USA where she was subjected to

great harassment and cruelty. In January 2008 he lost

his job in the US and came back to Hyderabad. Here

again there is a long narrative of the cruelty meted
5
out to the complainant in connection with the demand

for further dowry and to get her consent for divorce

under duress and coercion and physical assault. What is

however, significant to note is that in the latter part

of the complaint there is no mention of accused No.8

and she seems to figure only during the visit to

Tirupathi.

7. The police after investigation submitted charge-

sheet against all the accused. In the police charge

sheet the different accused are charged differently. So

far as the appellant is concerned, she is charged under

Sections 341 and 497 of the Penal Code. Section 497

deals with the offence of adultery and provides as

follows:

“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.”
6

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.

8. As regards Section 341 of the Penal Code, on the

basis of the allegation made in the complaint, we fail

to see how the charge of wrongful restraint can be made

out against the appellant.

9. All the allegations in the complaint taken on their

face value do not make out any case against the
7
accused. We are, therefore, satisfied that the

proceedings against the appellant are equally fit to be

quashed and the High Court was in error in not allowing

the quashing application filed by the appellant. We,

accordingly, set aside the order of the High Court and

quash the proceedings of CC No.482 of 2008 on the file

of the First Additional Judicial First Class

Magistrate, Amalapuram, East Godavari District, arising

out of Crime No.80 of 2008 of Ainavilli Police Station

insofar as the appellant, accused No.8 is concerned.

10. In the result, the appeal is allowed.

…………………………………………………………J.

(Aftab Alam)

……………………………………………………………J.

(R.M. Lodha)

New Delhi,

December 1, 2011.

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