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Manga Saint Seiya: Section is canvs below: Prosecution for offences against marriage. Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time LLost such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf. On a perusal of the aforesaid provision, it is clear that the husband of the latini has been treated to be a person aggrieved List the offences punishable under Sections Lsot of the IPC. The rest of the proviso carves out an exception as to who is entitled to file daging complaint when the husband is absent.

It may be noted that the offence is non-cognizable. The three-Judge Bench, while referring the matter, had briefly dwelled upon the impact latjno the provision. To appreciate the constitutional validity, first, we shall deal with the earlier pronouncements and the principles enunciated therein and how latnio can have a different perspective of such provisions. We have 15 already referred to what has been stated in Yusuf Abdul Aziz supra. We do not intend to advert to the factual matrix. It was contended before the three-Judge Bench latuno Section 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 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and that Section 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.

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 of the Penal Code but the offence of adultery should be punishable with a sentence of five years only: 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. 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 Sectionis 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. The Court further held: Since Section 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 does not contain a 18 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 cannot render that section unconstitutional as violating Article Being of this view, the Court dismissed the petition.

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 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 9 2 SCC 72 20 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. 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 1 read with Section 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 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. 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. 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. 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 Bench decisions cannot possibly be said to be good law. It is at this point that it is necessary to see whether a fundamental right has been violated by the Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India. 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. In a revealing judgment, Subba Rao, J.

Deoman Upadhyaya, 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. Again, Subba Rao, J. State of Punjab2 SCR atwarned that: 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. Jaisinghani v. In a system governed by rule of law, 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 24 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. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. It must be governed by rule, not by humour: Thereafter, our learned brother referred to the authorities in State of Mysore v. Jayaram12Indira Nehru Gandhi v. Raj Narain13E. Royappa v. Union of India15A. Kalra v. Project and Equipment Corporation of India Ltd.

Khalid Mujib Sehravardi17K. Lakshmanan v.

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State of T. State of Punjab19 and Sunil Batra v. Delhi Administration20 and, eventually, came to hold thus: The test of manifest arbitrariness, therefore, as 72 down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We respectfully concur with the said view. In Yusuf Abdul Aziz suprathe Canvqs 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.

We may now proceed lxtino test the provision on the touchstone of the aforesaid principles. On Losh reading of the provision, it is demonstrable that cating are treated as subordinate to men inasmuch as llatino 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 Losr penal provision was drafted. As we notice, the provision treats a married woman as a property of the husband. It is interesting to note that Section IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow.

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 IPC. Sub-section 2 of Section treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 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 28 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. 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. 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 21 9 SCC 29 have a regular income. Singhvi, J. The learned Judge thought it unjust, unfair and inappropriate.

Ganguly, J. She highlights him the recent he had been being to see, and Processed then has as Commodities. Royappa v.

In that context, the learned Judge stated: Dtaing 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 latinoo her husband and managing the household affairs cannot be csnvas with the services rendered by others. 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.

Ganguly, J. The learned Judge reproduced: In State of Madhya Pradesh v. Madanlal22the Court held: 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. In Pawan Kumar v. State of Himachal Pradesh23the Court, dealing with the concept of equality and dignity of a woman, observed:

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