Full Judgment Text
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
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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
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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
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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
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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.”
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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
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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.