It is definitely entirely in the fitness of things that the Delhi High Court while striking the right chord in a most learned, laudable, landmark, logical and latest judgment titled X vs The State & Inderjeet Singh in CRL.M.C. 3652/2018 & CRL.M.A.28469/2018 and also cited in Neutral Citation No.: 2025:DHC:2700 that was reserved on 28 January, 2025 and then finally pronounced on 17 April, 2025 has recently warned against treating women like property by referring to the treatment of Draupadi in the Mahabharat while deciding a 2010 case pertaining to allegations of adultery under the now struck down provision of Section 497 of the Indian Penal Code (IPC). It must be noted that the Single Judge Bench comprising of Hon’ble Ms Justice Neena Bansal Krishna minced just no words to hold that despite the well-documented plight of Draupadi in the Mahabharata and the consequences which followed, a misogynistic and patriarchal mindset that women are property continued to prevail in our society. We also need to note that the Delhi High Court pointed out that the Trial Court had rightly observed that there can be no presumption of sexual intercourse only because the wife stayed overnight in the same room with the man at a hotel in Lucknow. It was thus perfectly in order that the Delhi High Court very rightly set aside the summoning order and discharged the accused man from the criminal case.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Neena Bansal Krishna sets the ball in motion by first and foremost putting forth in para 1 that, “Petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C’ hereinafter) has been filed for quashing of the Order of the learned ASJ dated 28.04.2018 whereby the Petitioner has been summoned under Section 497 of the Indian Penal Code, 1860 (‘IPC’ hereinafter) in Complaint Case No.153/1 filed by Respondent No.2-Mr. the Complainant (husband of Ms. ).”
As we see, the Bench then specifies in para 2 stating that, “Briefly stated, got married to on 28.02.1998 at Vikas Puri, New Delhi as per Hindu rites and customs. From their wedlock two sons were born.”
To put things in perspective, the Bench envisages in para 3 disclosing that, “The Complainant/Respondent No.2 had alleged that in the month of August, 2009 his wife started going to the Park near their house on the pretext of walk after dinner. He found in December, 2009 that (Petitioner) had been making regular calls to his wife varying from 2 minutes to one hour and even at odd hours between 09:00 P.M. to 11:30 P.M. He, thus, realized that his wife was having an extra marital affair with him.”
While shedding more light on the nitty gritty of the case, the Bench lays bare in para 4 revealing that, “According to him, his wife along with went to Lucknow on 21.01.2010 in a flight, where they stayed together in the night of 21.01.2010 in as husband and wife and had sexual intercourse without the consent of the Complainant. On their return on 22.01.2010, he confronted his wife who told him to leave if he had any problem with their relationship.”
Further, it is disclosed in para 5 by the Bench that, “He served a Legal Notice dated 05.04.2010 on his wife to restrain her relationship with . Thereafter, he filed the Criminal Complaint under Section 497 IPC.”
As it turned out, the Bench enunciates in para 6 that, “The learned M.M. after recording the pre-summoning evidence, discharged Inderjeet Singh vide Order dated 09.09.2016. He preferred a Revision Petition No.57620/16 before the learned ASJ who vide impugned Order dated 28.04.2018, set aside the Order of the learned M.M and summoned the Petitioner. Aggrieved by the Order of summoning, he has filed the present Petition.”
Simply put, the Bench then observes in para 15 stating precisely that, “The Respondent No.2- is the aggrieved husband who had filed a Criminal Complaint No.153/1, alleging that his wife has been involved in an adulterous relationship with the Petitioner.”
Do note, the Bench notes in para 16 that, “The learned M.M. vide detailed Order dated 09.09.2016 discharged the Petitioner. However, this Order of discharge was set aside by learned ASJ vide Impugned Order dated 28.04.2018 and he has been summoned for the offence under Section 497 IPC.”
Quite starkly, the Bench points out in para 21 that, “The first aspect which emerges is that ironically, it is not the husband or the alleged adulterous wife, who is the accused for the offence under Section 497 IPC; rather it is the third person who allegedly has sexual intercourse with the wife of another man who becomes an accused person.”
Furthermore, the Bench then observes in para 22 stating explicitly that, “Further, as per Section 198 of Cr.P.C., Complaint can be instituted only by the husband thereby implying that it is the husband who is the aggrieved person, while the wife has been ignored as the victim. The provision is reflective of ‘tripartite labyrinth’ as observed by Deepak Mishra C. J. while penning the judgement in Joseph Shine vs. Union of India AIR 2018 SC 4898 wherein constitutionality of S.497 IPC was considered and was declared unconstitutional.”
To be sure, the Bench underscores in para 23 propounding that, “Deepak Mishra C. J. in Joseph Shine (supra), observed that when a party to a marriage lose their moral commitment of a relationship, it creates a dent in the marriage and would depend upon the parties as to how they intend to deal with the situation. Some may exonerate and continue to live together while others 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 to the third party. Adultery in certain situations may not be the cause of an unhappy marriage, but it can be the result thereof. Furthermore, if the act of adultery is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in their 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 whose marriages have not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is a law which is bound to fall within the sphere of manifest arbitrariness. Thinking of adultery from the point of criminality would be a retrograde step.”
More to the point, the Bench postulates in para 24 stating that, “It was succinctly observed by Nariman J. in his concurring opinion in Joseph Shine (supra) that the ostensible Object of Section 497 IPC being the protection and preservation of the sanctity of marriage is not in fact the object achieved by Section 497 IPC at all. The sanctity of the marriage can be utterly destroyed by a married man having sexual intercourse with the unmarried woman or a widow. Also, if the husband consents or connives for such sexual intercourse, no offence is committed thereby showing it is not the sanctity of marriage which is sought to be protected and preserved, but the 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. The manifest arbitrariness is writ large even in cases where the married woman, whose marriage has broken down and she no longer cohabits with her husband and may in fact, preparatory to a divorce may have obtained a decree for judicial separation against her husband, has sex with another man during this period; the other man is immediately guilty of the offence.”
Frankly speaking, the Bench then further points out in para 25 that, “The complexity and the anomalous situation in this Section was noted by Rohinton F. Nariman J. in Joseph Shine who observed that the real part 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. It is only on this paternalistic notion of a woman being likened to a chattel for if one is to use the chattel or is licensed to use to chattel by the licensor namely the husband, no offence is committed. Consequently, the wife who has committed adultery, is not the subject matter of offence, and cannot, for the reason that she is regarded only as a chattel, even be punished as an abettor. This is also for the chauvinistic logic that the third party male had seduced her, she being a 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 become in today’s day and age, utterly irrational.”
Most significantly, most remarkably and most forthrightly, the Bench encapsulates in para 26 what constitutes the cornerstone of this notable judgment postulating that, “The woman being considered as the property of the husband and its devastating consequences are well documented in Mahabharat wherein Draupadi was put on stake in a game of gamble by none other than her own husband Yudhishtra where other four brothers were the silent spectators and Draupadi had no voice to protest for her dignity. As it happened, she was lost in the game of gamble and what followed was the great war of Mahabharat leading to mass loss of lives and wiping out of many of the family members. Despite having such example to demonstrate the consequence of absurdity of treating of a woman as a chattel, the misogynistic mindset of our Society understood this only when the Apex Court declared Section 497 IPC as unconstitutional in the case of Joseph Shine (supra).”
As things stands, the Bench stipulates in para 27 that, “The next aspect which comes for consideration is whether the declaration of Section 497 IPC as unconstitutional in Joseph Shine (supra) vide judgement dated 27.09.2018 is retrospective and would be applicable to the present case which got initiated with a Complaint filed by the Husband on 24.04.10.”
Be it noted, the Bench notes in para 28 that, “This aspect has been considered in the judgment Maj. Genl. A.S. Gauraya & Anr. Vs. S.N. Thakur 1986 AIR 1440 wherein the Apex Court had held that declaration of law by the Supreme Court applies to all the pending proceedings even with retrospective effect.”
Do further note, the Bench notes in para 29 that, “The principle as declared by the Apex Court, was followed by High Court of Telangana in Satyam Sudarshan vs. State of Telangana Crl. Pet. No.1513 of 2019 dated 03.08.2022.”
Do also note, the Bench then notes in para 30 that, “Likewise Punjab and Haryana High Court in the case of Chetan Kumar v. State of Punjab, 2019 SCC OnLine P&H 6290, wherein the proceedings under Section 497 IPC were pending, were struck down in view of the judgment of the Apex Court in the case of Joseph Shine (supra), by observing that the judgment would apply even to the pending cases.”
What’s more, the Bench notes in para 31 that, “Similarly, High Court of Jharkhand in August Kumar Mehta vs The State Of Jharkhand Crl. Rev. Pet. No.1081/2013 has struck down the pending proceedings under Section 497 IPC.”
As a corollary, the Bench then holds in para 32 that, “Therefore, the Complaint Case No.153/1 filed by Respondent No.2 on the allegations of Section 497 IPC against the Petitioner, is therefore, liable to be quashed.”
It is worth noting that the Bench notes in para 33 that, “Further, even on facts, the Ld. M.M. had rightly noted that the case of the Petitioner was that since his wife along with the Petitioner stayed overnight in the same room in Piccadilly Hotel, Lucknow, there can be no presumption of they having indulged in a sexual intercourse. The gravamen of Section 497 is that they must have indulged in the act of adultery i.e. they must have had sexual intercourse for which there is no oral or documentary evidence, but is based on a presumption which cannot be considered prima facie for summoning of the Petitioner. The essential ingredients of Section 497 IPC, were therefore not made out.”
Finally, the Bench then draws the curtains of this notable judgment by holding and directing in para 34 that, “The impugned Order of Ld. ASJ dated 28.04.2018 summoning the Petitioner under S. 497 IPC, is hereby set aside and the Complaint of the Respondent No.2 is hereby quashed and the Petitioner is discharged. The Petition is accordingly allowed. The pending Applications are disposed of accordingly.”
All told, we thus see that the Delhi High Court has made it indubitably clear that women should not be treated as property of men as husband. It very rightly referred to the raw treatment that was meted out to Draupadi in the legendary epic Mahabharat. It also expressed its serious concern over a misogynistic and patriarchal mindset that women are property which still continues to not just prevail but also prosper. The Delhi High Court very rightly upheld the Trial Court’s order that there can be no presumption of sexual intercourse only because the wife stayed overnight in the same room with the man at a hotel in Lucknow. So it was thus entirely in order that the Delhi High Court discharged the accused man from the criminal case that was foisted upon him. No denying it!
Sanjeev Sirohi